had been denied, and judgment entered upon a verdict in favor of the plaintiffs. This action was brought by Samuel Thomas, and Mary Ann his wife, against the defendants, Winchester and Gilbert, to recover damages for negligently putting up, labelling and selling, as and for extract of dandelion, a simple and harmless medicine, a jar of extract of belladonna, a deadly poison; by means whereof, the plaintiff, Mary Ann Thomas, to whom a dose of dandelion had been prescribed by a physician, and to whom a portion of the contents of the jar of belladonna had been administered, as and for extract of dandelion, had been greatly injured. . . . It was proved, on the trial, before MASON, J., that Mrs. Thomas being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county, where the plaintiffs resided. A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered, however, after some time, from its effects, although, for a short time, her life was thought to be in great danger. The medicine administered was belladonna, and not dandelion. The jar from which it was taken was labelled "11⁄2 lb. dandelion, prepared by A. Gilbert, No. 108 John Street, N. Y. Jar 8 ox." It was sold for, and believed by Dr. Foord to be, the extract of dandelion, as labelled. Dr. Foord purchased the article, as the extract of dandelion, from James S. Aspinwall, a druggist at New York. Aspinwall, a druggist, bought it of the defendant, as extract of dandelion, believing it to be such. The defendant, Winchester, was engaged at No. 108 John Street, New York, in the manufacture and sale of certain vegetable extracts for medicinal purposes, and in the purchase and sale of others. The extracts manufactured by him were put up in jars for sale, and those which he purchased were put up by him in like manner. The jars containing extracts manufactured by himself and those containing extracts purchased by him from others, were labelled alike. Both were labelled like the jar in question, as "prepared by A. Gilbert." Gilbert was a person employed by the defendant at a salary, as an assistant in his business. The jars were labelled in Gilbert's name, because he had been previously engaged in the same business, on his own account, at No. 108 John street, and, probably, because Gilbert's labels rendered the articles more salable. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not manufactured by the defendant, but was purchased by him from another manufacturer or dealer. The extract of dandelion and the extract of belladonna resemble each other in color, consistence, smell and taste; but may, on careful examination, be distinguished the one from the other by those who are well acquainted with these articles. Gilbert's labels were paid for by Winchester, and used in his business, with his knowledge and assent. ... The defendant's counsel moved for a nonsuit, on the following grounds: 1. That the action could not be sustained, as the defendant was the remote vendor of the article in question: and there was no connection. transaction, or privity between him and the plaintiffs, or either of them. 2. That this action sought to charge the defendant with the consequences of the negligence of Aspinwall and Foord. . . . The motion for a nonsuit was overruled. The judge, among other things, charged the jury that . . . if the defendant Winchester was guilty of negligence in putting up and vending the extracts in question, the plaintiffs were entitled to recover. The defendant Gilbert was acquitted by the jury under the direction of the Court, and a verdict was rendered against Winchester for eight hundred dollars damages. . . . Winchester took this appeal. ... Charles P. Kirkland, for the appellant. Nicholas Hill, Jr., for respondents. RUGGLES, C. J. [After stating the facts.] The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is, whether the defendant, being a remote vendor of the medicine, and there being no privity or connection between him and the plaintiffs, the action can be maintained. If, in labelling a poisonous drug with the name of a harmless medicine, for public market, no duty was violated by the defendant, excepting that which he owed to Aspinwall, his immediate vendee, in virtue of his contract of sale, this action cannot be maintained. If A. build a wagon, and sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.'s obligation to build the wagon faithfully arises solely out of his contract with B. The public have nothing to do with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder's negligence; and such negligence is not an act imminently dangerous to human life. . . . This was the ground on which the case of Winterbottom v. Wright, 10 M. & W. 109, was decided. . . . The reason of the decision is best stated by Baron Rolfe. A.'s duty to keep the coach in good condition was a duty to the postmaster-general, with whom he made his contract, and not a duty to the driver employed by the owners of the horses. But the case in hand stands on a different ground. The defendant was a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label. . . . In respect to the wrongful and crim inal character of the negligence complained of, this case differs widely from those put by the defendant's counsel. No such imminent danger existed in those cases. In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury therefore was not likely to fall on him, or on his vendee who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened. The defendant's negligence put human life in imminent danger.. ... The duty of exercising caution in this respect did not arise out of the defendant's contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison, mislabelled, into the hands of Aspinwall as an article of merchandise to be sold and afterwards used as the extract of dandelion, by some person then unknown. . . . In Longmeid v. Holliday, 6 Law and Eq. Rep. 562, the distinction is recognized between an act of negligence imminently dangerous to the lives of others, and one that is not so. In the former case, the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the party with whom he contracted, and on the ground that negligence is a breach of the contract. The defendant, on the trial, insisted that Aspinwall and Foord were guilty of negligence in selling the article in question for what it was represented to be in the label; and that the suit, if it could be sustained at all, should have been brought against Foord. . . . But it seems to me to be clear that the defendant cannot, in this case, set up as a defence, that Foord sold the contents of the jar as and for what the defendant represented it to be. The label conveyed the idea distinctly to Foord that the contents of the jar was the extract of dandelion; and that the defendant knew it to be such. So far as the defendant is concerned, Foord was under no obligation to test the truth of the representation. The charge of the judge in submitting to the jury the question in relation to the negligence of Foord and Aspinwall, cannot be complained of by the defendant. GARDINER, J., concurred in affirming the judgment, on the ground that selling the belladonna without a label indicating that it was a poison, was declared a misdemeanor by statute (2 R. S. 694, § 23); but expressed no opinion upon the question whether, independent of the statute, the defendant would have been liable to these plaintiffs. GRIDLEY, J., was not present when the cause was decided. All the other members of the Court concurred in the opinion delivered by Ch. J. Ruggles. Judgment affirmed. 471. HUSET v. CASE THRESHING MACHINE COMPANY UNITED STATES CIRCUIT COURT OF APPEALS. 1903 IN error to the Circuit Court of the United States for the District of Minnesota. This writ of error was sued out to reverse a judgment sustaining a demurrer to the amended complaint of O. S. Huset, the plaintiff below and the plaintiff in error here, in an action for personal injury, which he brought against the J. I. Case Threshing Machine Company, a corporation. These are the facts which the complaint discloses: The threshing machine company was a corporation engaged in the manufacture and sale of threshing rigs, which consisted of an engine, a separator, a band-cutter, and self-feeder. The band-cutter and self-feeder consisted of a series of fast revolving knives covered with a sheet-iron covering and a frame designed to fit into the front of the separator in which the cylinder was located. The cylinder was made of iron and steel about forty-eight inches in length and twenty inches in diameter, set with rows of steel teeth and spikes projecting about two inches, and so placed as to pass between similar teeth in a concave frame in front of and under the cylinder. When the machine was in operation, this cylinder revolved at a very high rate of speed with great force, and threshed the grain. The self-feeder and bandcutter was designed to be fastened to the separator, and its sheet-iron covering fitted onto the front of the separator just above and over the front part of the cylinder so as to cover the cylinder completely. The object and design of the defendant in placing this covering over the cylinder was that it should be used by any person who might operate the machine to walk upon in passing from the top of the main part of the thresher to the feeder. This sheet-iron covering was made without any support, and was so pliable and easily bent that it was incapable of sustaining the least weight, and would necessarily bend and collapse when subjected to the weight of any man who might walk or step on it. It was necessary for the operator to walk over the covering of the cylinder in operating the machine. This machine, covered in this way, was imminently and necessarily dangerous to the life and limbs of those who operated it, and it was well known to be thus dangerous by the defendant when it shipped the same and supplied it to the purchaser, J. H. Pifer; but this dangerous condition was of such a nature as not to be readily dicsovered by persons engaged in operating the machine or working thereon, but was concealed, and thereby rendered more dangerous still. On August 25, 1901, the defendant sold this threshing outfit to J. H. Pifer, who started to operate it on the next day, and employed the plaintiff, O. S. Huset, as a laborer to assist him in running it. It became the duty of the plaintiff to walk upon the top of the machine over the cylinder while it was in operation in order to superintend the pitching of bundles into the self-feeder, to prevent its clogging, and to oil the bearings of the parts of the cylinder and bandcutter. When he walked upon the covering of the cylinder, this covering sank so as to come in contact with the cylinder, and the plaintiff's right foot was caught thereby, and his foot and leg were drawn into it and crushed to a point above the knee joint, so that it was necessary to amputate the leg above the knee. The demurrer to this complaint rests upon the grounds that the defendant owed no duty to the plaintiff, who was a stranger to the transaction between the defendant, the manufacturer and vendor of the threshing machine, and the vendee, Pifer. The Court sustained the demurrer, and dismissed the action. Halvor Steenerson (Charles Loring, on the brief), for plaintiff in error. W. E. Black (Alfred L. Cary and Horace A. J. Upham on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. SANBORN, Circuit Judge, after stating case as above, delivered the opinion of the Court. Is a manufacturer or vendor of an article or machine which he knows, when he sells it, to be imminently dangerous, by reason of a concealed defect therein, to the life and limbs of any one who shall use it for the purpose for which it was made and intended, liable to a stranger to the contract of sale for an injury which he sustains from the concealed defect while he is lawfully applying the article or machine to its intended use? The argument of this question has traversed the whole field in which the liability of contractors, manufacturers, and vendors to strangers to their contracts for negligence in the construction or sale of their articles had been contested. The decisions which have been cited are not entirely harmonious, and it is impossible to reconcile all of them with any established rule of law. And yet the underlying principle of the law of negligence, that it is the duty of every one to so act himself and to so use his property as to do no unnecessary damage to his neighbors, leads us fairly through the maze. With this fundamental principle in mind, if we contemplate the familiar rules that every one is liable for the natural and probable effect of his acts; that negligence is a breach of a duty; that an injury which is the natural and probable consequence of an act of negligence is actionable, while one that could not have been foreseen or reasonably anticipated as the probable effect of such an act is not actionable, because the act of negligence in such a case is the remote, and not the proximate, cause of the injury; and that, for the same reason, an injury is not actionable which would not have resulted from an act of negligence except from the interposition of an independent cause (Chicago, St. Paul, Minneapolis & Omaha R. Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582), — nearly all the decisions upon this subject range themselves along symmetrical |