duced is likely to cause unjustifiable assaults and consequent injury to the assailant.

The case should have been submitted to the jury.

Exceptions sustained.1

The defendants by their negligence caused a gasoline tank car, derailed and wrecked alongside of the track within the city, to emit gasoline into the gutters and create an explosive gas. One D. lit a cigar, while standing on the street and threw the match away; an explosion ensued, damaging the plaintiff's house and badly injuring his head. There was some evidence that D. threw the match maliciously, for the purpose of causing a fire, having been that morning discharged from employment by one of the defendants. Was the damage too remote? (1910, Watson v. Kentucky & I. B. Co., 137 Ky. 619, 126 S. W. 146.)

The defendant carelessly left a railroad car unfastened and without protection. Some boys, trespassing, set it in motion, and it injured the plaintiff's property. Was this too remote? (1902, McDowall v. R. Co., 1 K. B. 618.)

By the defendant's negligence, a live electric-light wire broke and fell into the street. It lay between the sidewalk and the roadway; as plaintiff was passing, a policeman struck the wire with his club, and threw it against plaintiff, from which he received a shock causing injuries. Is the defendant responsible? (1909, Seith v. Commonwealth El. Co., 241 Ill. 252, 89 N. E. 425.)

The defendant falsely stated that there was arsenic in the silk used at the plaintiff's factory. The plaintiff's workmen heard of this, and refused to work for the plaintiff. Is the defendant responsible for the loss of service? (1890, Elmer v. Fessenden, 151 Mass. 161.)

The defendant left some explosive caps in a tool-chest in a vacant lot, where boys played. X opened the box, Y took out one of the caps and gave it to Z, and Z carelessly exploded it, injuring the plaintiff. Was this too remote? (1899, Afflick v. Bates, 21 R. I. 281, 43 Atl. 539.)

The plaintiff's arm was broken by the defendant's negligence. The surgeon set it badly, so that it healed poorly. Was this additional harm too remote? (1884, Pullman P. C. Co. v. Bluhan, 109 Ill. 20.)

The defendant village maintained a sidewalk defectively elevated six feet above the street without a railing. The plaintiff boy was pushed off, by the inadvertent or negligent jostling of another boy, and was injured. Was this too remote? (1889, Carterville v. Cook, 129 Ill. 152, 22 N. E. 14.)

The defendant town negligently maintained a deep hole alongside of the street. The plaintiff, a constable, was leading one H. to jail under sentence, and on passing the hole, H. threw the plaintiff into it and escaped. Was the plaintiff's injury too remote? (1888, Alexander v. Newcastle, 115 Ind. 51.)

The defendants were custodians of a brutal convict, under the convict-labor contract system. The defendants negligently allowed the convict to escape, and he committed a rape on the plaintiff. Was this too remote? (1897, Henderson v. Coal Co., 100 Ga. 568, 28 S. E. 251.)

The defendant negligently left in the street a barrel of fish-brine. A third person wilfully emptied it on the pavement. The plaintiff's cow lapped it up, and died of the poison. Was this too remote? (1883, Henry v. Dennis, 93 Ind. 450.)

NOTES:

"Instinctive acts breaking causal connection." (H. L. R., VII, 55, 302; XIII, 599; XIV, 391.)

"Intervention of wilful act of third person." (H. L. R., XI, 272; XII, 220; XVI, 147.)

"Intervening negligence of third party." (H. L. R., XVI, 227; XVII, 138.)]

SUB-TOPIC C. THIRD PERSON AS INTERMEDIATE LESSEE, BAILEE, OR INDEPENDENT CONTRACTOR

463. PAYNE v. ROGERS

COMMON PLEAS. 1794

2 H. Bl. 349

Le Blanc, Serjt., moved for a rule to shew cause why the verdict found for the plaintiff in this cause should not be set aside, and nonsuit entered. It was an action on the case against the defendant as owner of a house in the occupation of one Platt, his tenant, for an injury sustained by the plaintiff by his left foot slipping through a hole in the foot pavement into a vault or cellar, owing to some plates or bars (which went under the pavement) being out of repair. And the ground of the motion was, that the action ought to have been brought against the actual occupier of the house, whose more immediate benefit it was to know what repairs were necessary and to see that they were made, and not against the landlord. Though the landlord might bear the expense of the repairs, yet as between the occupier and the public, the occupier was bound to look to the state of them, and ought to be liable for any accident that might happen by his neglect. Thus in Cheetham v. Hampson, 4 Term Rep. B. R. 318, it was holden that an action on the case for not repairing fences could only be maintained against the occupier.

BULLER, J. Who was to repair in the first instance?

KENYON, L. C. J. Evidence was given of repairs being actually done by the landlord. And I thought at the trial, that though the tenant was prima facie bound to repair, and therefore liable, yet if he could shew that the landlord was to repair, then that the landlord was liable.

BULLER, J. The direction of my Lord Chief Justice was most clearly right. I agree that the tenant as occupier is prima facie liable to the public, whatever private agreement there may be between him and the landlord. But if he can shew that the landlord is to repair the landlord is liable for neglect to repair.

HEATH, J. If we were to hold that the tenant was liable in this case, we should encourage circuity of action, as the tenant would have his remedy over against the landlord.

ROOKE, J., of the same opinion.

Rule refused.

464. RICH v. BASTERFIELD

COMMON PLEAS. 1847

4 C. B. (M. G. & S.) 783

ACTION on the case in which the declaration alleged that the plaintiff had been and was possessed of a messuage, &c., which he and his family occupied; that the defendant was possessed of two messuages and yards near to the plaintiff's messuages; and that the defendant, contriving to injure the plaintiff and his family in their occupation, &c., on, &c., erected certain shops and chimneys on the defendant's said yards, near to the plaintiff's house, and continued the same there, and lighted fires in the said shop, and caused smoke, &c., to issue from the said chimneys; whereby the plaintiff's messuage was rendered unhealthy, and he was compelled to keep his windows closed, to exclude the smoke, and was prevented from obtaining fresh air, and the plaintiff and his family were annoyed and prejudiced in the occupation of his messuage, &c. The defendant pleaded, first, not guilty, secondly, that he, the defendant, was not possessed of the said yards and shops. At the trial before ERLE, J., at the sittings in Middlesex after Hilary term, 1846, it appeared in evidence that the plaintiff was possessed of a house, No. 10, and the defendant of two other houses, being Nos. 12 and 13, in the New Road, east of Tottenham Court Road; that the houses stand a considerable distance back from the road; that in front of the defendant's houses, the defendant some time since erected two low buildings, which were let as shops, from which the smoke was at first carried under ground into one of the chimneys of the house behind it; but, that plan not answering, that he afterwards erected a chimney; and that the shop, with the stove and chimney, was subsequently let to a tenant from week to week, who occupied it at the time when the nuisance to the plaintiff's house was said to have been committed, and by whom the fires complained of were made. A former occupier stated that he used to make fires in the stove, principally of coke, and that no smoke which could be at all injurious then issued from the chimney. The fires made by the present occupier caused a good deal of smoke to issue, which, when the wind blew towards the plaintiff's house, was driven to it and compelled him to keep his windows shut.

Upon this evidence, it was contended, for the defendant, that he was entitled to a verdict on both issues; for, that the act of his tenant in making fires, could not be considered as his act, and therefore he was not guilty; and that, the tenant being in possession at the time when the nuisance was said to have been committed, the defendant was entitled to a verdict on the issue of not possessed, also. The learned judge reserved to the defendant leave to move to enter a verdict in his favour, and left to the jury the question whether the defendant

made a reasonable use of rights in respect of the property in question in a reasonable place; and they found for the plaintiff. In Easter term, 1846, a rule nisi for entering a verdict for the defendant was granted, which was argued in Trinity term, and afterwards stood over for consideration: and, as a considerable change had taken place on the bench before any decision had been come to, it was thought right that the case should be argued a second time, before the Court as at present constituted. . . .

Talfourd, Serjt. (with whom was Peacock), on a subsequent day in the same term, showed cause. It is true, the defendant did not light the fires the smoke from which penetrated the plaintiff's dwellinghouse; but he built the chimney, and afterwards let the shop with the chimney; and therefore, in contemplation of law, he was the author of the nuisance. Every man is responsible for the natural and necessary consequences of his acts: and here, the defendant must be taken to have erected the chimney for the only purpose to which it could be applied. . . .

Byles, Serjt., and Wordsworth, in support of the rule. The declaration would have clearly disclosed no good cause of action, if it had merely alleged the erection of the chimney; inasmuch as it would not of necessity have been used, or, if used, it might have been used with a description of fuel creating no nuisance. The gravamen here is, the emission of noxious smoke; and upon the evidence it is clear that this is not chargeable on the defendant, for the chimney had never been used when the present tenant's occupation of the shop commenced. . . .

...

The Court took time to consider; and, the constitution of the court having been materially changed by the decease of TINDAL, C. J., and the removal of ERLE, J., to the Court of Queen's Bench, before any decision was pronounced, a second argument was directed, which took place in Easter term, 1847, before WILDE, C. J., and COLTMAN, CRESSWELL, and V. WILLIAMS, JJ.

May 26. Talfourd, Serjt., and Peacock, for the plaintiff. The main question is, whether the defendant, having erected the chimney and let the shop with the chimney to a tenant, who, by using it in the ordinary way, caused the nuisance complained of, can be charged as the author of the nuisance; or whether he is discharged from all liability, because he himself did not light the fires. [WILDE, C. J. The tenant may so use the chimney as to cause no nuisance; he may burn coke.] It must be assumed that the chimney was built with a view to its use in the ordinary way. If it is so used as to occasion a nuisance, the landlord has in his power to abate the nuisance by determining the tenancy, instead of sanctioning the continuance of it, by receiving rent week after week. . .

Byles, Serjt., and Wordsworth, for the defendant. . . . The evidence failed to establish that the defendant was the author of it. It is said,

that, the defendant having erected the chimney, the lighting of fires therein was the natural and necessary consequence of this act, and, therefore, that he is responsible. [WILDE, C. J. . . . In The King v. Pedley there was a positive existing nuisance on the premises at the time of letting, and not, as here, a thing from which a nuisance might possibly emanate at some future time.] Precisely so. The defendant has not actually, or constructively, been guilty of the nuisance. charged. . . .

CRESSWELL, J. . . . The case mainly relied on was, The King . Pedley, 1 Ad. & E. 822, in which it was said to have been decided that, if a landlord erects a building which is a nuisance, or of which the occupation is likely to produce a nuisance, and lets the land with the building so erected, he is liable to be indicted for such nuisance. being continued or created during the term. . . . On the other hand, it was contended, that, inasmuch as the fires, which created the smoke complained of, were made, not by the defendant or his servants, but by his tenants, he is not responsible; and that, although in some cases, ex. gr. Bush v. Steinman, 1 B. & P. 404; Burgess v. Gray, 1 Man. Gr. & Scott, 578, and Randleson v. Murray, 8 Ad. & E. 109, the owners of property were held liable for injuries arising from acts done upon that property by persons not strictly their agents or servants; yet such liability attached only upon persons in possession; and that the defendant in this case, not being in possession at the time when the nuisance complained of was created, could not be made liable. And such is now the opinion of the Court.

It being quite possible for the tenant to occupy the shop without making fires, and quite optional on his part to make them or not, or to make them with certain times excepted, so as not to annoy the plaintiff, or in such a manner as not to create any quantity of smoke that could be deemed a nuisance, it seems impossible to say that the tenant was, in any sense, the servant or agent of the defendant, in doing the acts complained of. The utmost that can be imputed to the defendant is, that he enabled the tenant to make fires, if he pleased. The case, then, resting, not upon the erection of the chimney, but upon the subsequent use of it by the tenant, can the defendant, his landlord, be held to be guilty of the nuisance? Several cases have occurred in which the owners of fixed property have been held liable for the consequences of acts done upon it by persons not strictly their servants or agents. But the principle on which those cases proceeded, and the limits within which they should be restrained, are clearly laid down by Littledale, J., in Laugher v. Pointer, 5 B. & C. 547, 8 D. & R. 556; which judgment is cited with much just approbation, and adopted by the Court of Exchequer, in Quarman v. Burnett, 6 M. & W. 499. The principle stated by Mr. Justice LITTLEDALE is, that, where a man is in possession of fixed property he must take care that his property is so used and managed that other persons are not injured; and that,