lines, and establish rational rules of the law of negligence consistent with the basic principles upon which it rests.

Actions for negligence are for breaches of duty. Actions on contracts are for breaches of agreements. Hence the limits of liability for negligence are not the limits of liability for breaches of contracts, and actions for negligence often accrue where actions upon contracts do not arise; and vice versa. It is a rational and fair deduction from the rules of which brief reference has been made that one who makes or sells a machine, a building, a tool, or an article of merchandise designed and fitted for a specific use is liable to the person who, in the natural course of events, uses it for the purpose for which it was made or sold, for an injury which is the natural and probable consequence of the negligence of the manufacturer or vendor in its construction or sale. But when a contractor builds a house or a bridge, or a manufacturer constructs a car or a carriage, for the owner thereof, under a special contract with him, an injury to any other person than the owner for whom the article is built and to whom it is delivered cannot ordinarily be foreseen or reasonably anticipated as the probable result of the negligence in its construction. So, when a manufacturer sells articles to the wholesale or retail dealers, or to those who are to use them, injury to third persons is not generally the natural or probable effect of negligence in their manufacture, because (1) such a result cannot ordinarily be reasonably anticipated, and because (2) an independent cause the responsible human agency of the purchaser-without which the injury to the third person would not occur, intervenes, and, as Wharton says, "insulates" the negligence of the manufacturer from the injury to the third person (Wharton on Law of Negligence, 3d ed., § 134). For the reason that in the case of things of the character which have been mentioned the natural and probable effect of the negligence of the contractor or manufacturer will generally be limited to the party for whom the article is constructed, or to whom it is sold; and, perhaps more than all this, for the reason that a wise and conservative public policy has impressed the Courts with the view that there must be a fixed and definite limitation to the liability of manufacturers and vendors for negligence in the construction and sale of complicated machines and structures which are to be operated or used by the intelligent and the ignorant, the skilful and the incompetent, the watchful and the careless, parties that cannot be known to the manufacturers or vendors, and who use the articles all over the country hundreds of miles distant from the place of their manufacture or original sale, a general rule has been adopted and has become established by repeated decisions of the Courts of England and of this country that in these cases the liability of the contractor or manufacturer for negligence in the construction or sale of the articles which he makes or vends is limited to the persons to whom he is liable under his contracts of construction or sale. The limits of the liability for

negligence and for breaches of contract in cases of this character are held to be identical. The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles. Winterbottom v. Wright, 10 M. & W. 109. . . .

...

The views expressed by the judges in this case have prevailed in England and in the United States, with the exceptions of two decisions. which are in conflict with the leading case and with all the decisions to which reference has been made. Those cases are Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311, in which Smith, a painter, employed Stevenson, a contractor, to build a scaffold ninety feet in height, for the express purpose of enabling the painter's workmen to stand upon it to paint the interior of the dome of a building, and the Court of Appeals of New York held that Stevenson was liable to a workman of Smith, the painter, who was injured by a fall, caused by the negligence of Stevenson in the construction of the scaffold upon which he was working; and Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St. Rep. 559, in which a painter purchased of a manufacturer a step-ladder and one of the painter's employees, who was injured by the breaking of a step caused by the negligence of the manufacturer, was permitted to recover of the latter for the injuries he had sustained. . . .

But while this general rule is both established and settled, there are, as is usually the case, exceptions to it as well defined and settled as the rule itself. There are three exceptions to this rule.

The first is that an act of negligence of a manufacturer or vendor which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third parties. who suffer from the negligence. Dixon v. Bell, 5 Maule & Sel. 198; Thomas v. Winchester, 6 N. Y. 397 [ante, No. 469].1 . .

The third exception to the rule is that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another, without notice of its qualities, is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not. Langridge v. Levy, 2 M. & W. 519, 4 M. & W. 337; Wellington v. Oil Co., 104 Mass. 64, 67; Lewis v. Terry (Cal.), 43 Pac. 398. In Langridge v. Levy, 2 M. & W. 519, a dealer sold a gun to the father for the use of the son, and represented that it was a safe gun, and made by one Nock. It was not made by Nock, was a defective gun, and when the son discharged it, it exploded and injured him. The son was permitted to recover, because the defendant had know

1 [The learned Court's second "exception" is the case of invitees who do not assume the risk of dangerous premises; treated post, Book III.]

ingly sold the gun to the father for the purpose of being used by the plaintiff by loading and discharging it, and had knowingly made a false warranty that this might be safely done, and the plaintiff, on the faith of that warranty, and believing it to be true, had used the gun, and sustained the damages.

Turning now to the case in hand, it is no longer difficult to dispose of it. . . . The case falls fairly within the third exception. It portrays a negligence imminently dangerous to the lives and limbs of those who should undertake to operate it, a concealment of this dangerous condition, a knowledge of the defendant when it was shipped and supplied to the employer of the plaintiff that the rig was imminently dangerous to all who should use it for the purpose for which it was made and sold, and consequent damage to the plaintiff. . . . It is perhaps improbable that the defendant was possessed of the knowledge of the imminently dangerous character of this threshing machine when it was delivered, and that upon the trial of the case it will be found to fall under the general rule which has been announced in an earlier part of this opinion. But upon the facts alleged in this complaint, the act of delivering it to the purchaser with a knowledge and a concealment of its dangerous condition was so flagrant a disregard of the rule that one is bound to avoid any act imminently dangerous to the lives and health of his fellows that it forms the basis of a good cause of action in favor of any one who sustained injury therefrom.

The judgment of the Circuit Court must be reversed, and the cause must be remanded to the Court below for further proceedings not inconsistent with the views expressed in this opinion.

472. PETERS v. JOHNSON. (1902. 50 W. Va. 644; 41 S. E. 140.) Brannon, J.: The single question in a given case is, Was there a duty on the part of the defendant to the person suing him? Whence does duty come? The general rule is that damages only come from what is natural, reasonable, and probable consequence of an act. If harm may come reasonably and probably to any one from another's action, there is duty on him so to act as to avoid such injury. . . . Our case in hand is the case of one selling by mistake the wrong article, by negligence or incompetency as is claimed, selling a hurtful drug for medicine, when a harmless medicine was called for, and injury resulting to a stranger to the sale. Many authorities hold that one who sells provisions for consumption that are bad and hurtful is liable. Craft v. Parker, Webb & Co. (Mich.), 55 N. W. 812, 21 L. R. A. 139. Much more in the case of hurtful drugs! Would you limit the liability for selling foul food to only him who made the contract of purchase, and leave others at the table, wife, child, boarder, guest, suffer the harm? If one contracts to prepare a supper for a ball or festival, and furnishes sickening victuals, ought not any one injured to go to him for reparation? Under the facts, is he not under duty to every one present, in addition to his duty to his contracting party? It was held that he was in Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715. Why not, also, one selling drugs? . . . We must distinguish cases, and not carry the principle of allowing strangers to the contract to sue for damages in every case. We cannot say that every one injured from

defects in a railroad car or carriage or machinery can sue the maker or seller. This would be saying that any stranger could sue for injury for breach of a contract, resulting in injury to him. Who would sell under such a rule? The explosion of a defective cylinder of a threshing machine did not give action to a person operating it, against the manufacturer, for want of privity of contract; if the manufacturer knew of the defect, he would be liable; but if he did not, it would be otherwise, though guilty of negligence in manufacturing and testing: Heizer v. Manufacturing Co. (Mo.), 19 S. W. 630, 32 Am. St. Rep. 482, 15 L. R. A. 821. . . . What is the test or criterion always applicable? Hardly any. Each case involving this nice principle must be largely its own arbiter. We may say that, as the authorities cited show, a third party, a stranger to the sale, can only sue when the thing used or the negligent act is very dangerous to human life, and injury may reasonably be expected to happen to others therefrom.

473. KUELLING v. LEAN MANUFACTURING COMPANY. (1905. 183 N. Y. 78; 75 N. E. 1098). [Here the defendant had knowingly made the tongue of a roadroller from imperfect wood, concealing the defect with putty and paint; he sold it to W., who sold to F., who sold to the plaintiff; the tongue broke, the horses ran away, and the plaintiff was injured.] Vann, J.: While the machine was not inherently dangerous, that fact is not controlling; for the danger was in the concealed defect in an implement sold as sound, and which not only appeared to be sound, but the maker caused it to so appear with intent to deceive. It would be illogical to hold the maker of a poisonous medicine, who negligently, but unintentionally, labelled it as an innocent remedy, and sold it, liable to any one who used it without notice of its character, but not to hold him liable if he intentionally created a danger in a machine apparently safe, which might be as fatal as poison, and, after concealing it in such a way as to prevent detection, put it on the market. While the danger in the one case is not so great as in the other, still, if the natural result would cause bodily harm to a human being, that regard for the safety of life and limb which the common law is so careful to shield should hold the wrongdoer liable in both. A land-roller is an implement not ordinarily dangerous; but one with a defective tongue, when the defect is thoroughly concealed for the purpose of making a better sale, may turn out to be as dangerous as a cartridge loaded with dynamite instead of gunpowder. Liability in this case rests on the simple extension of the well-established principle that the maker of an article inherently dangerous, but apparently safe, who puts it on the market without notice, is liable to one injured while using it, to the case of the maker of an article not inherently dangerous, who made it dangerous by his own act, but so concealed the danger that it could not be discovered, and put it on the market to be sold and used as safe. The extension is logical, and consistent with the authorities; for if the implement is not inherently dangerous, but the use thereof is made dangerous by a defect wrongfully concealed; the result is the same and the motive worse. I concur for reversal.1

1 [SUB-TOPIC D. PROBLEMS:

The plaintiff was eating at a lunch-counter, when the coffee-urn exploded and injured him. The urn had been defectively made by the defendant and sold to the restaurant-owner. Is the defendant responsible? (1909, Statler v. Ray Mfg. Co., 195 N. Y. 478, 88 N. E. 1063.)

The defendant sold to the plaintiff one dozen four-ounce bottles of gingerextract, representing it to be pure. In fact it contained 85 per cent of wood

SUB-TITLE (III): SUNDRY RULINGS DECLARING PROXIMATENESS AS MATTER OF LAW IN SPECIFIC CIRCUMSTANCES (NEGLIGENCE PER SE; ACTING AT PERIL)

Topic 1. General Principle

475. OLIVER WENDELL HOLMES, JR. The Common Law. (1881, pp. 81154, in part. Lectures III, IV.) There are two theories of the common-law lia

alcohol. The plaintiff drank some and died. May his representatives recover? (1910, Darks v. Scudders-Gale G. Co., Mo. App. 130 S. W. 430.)

The defendant sold a horse to M. fraudulently concealing the fact that the horse had the glanders. The plaintiff was employed by M. to take care of the horse, and contracted the disease while doing so. Was the defendant responsible? (1894, State v. Fox, 79 Md. 514, 29 Atl. 601; 1903, Skinn v. Reuter, 135 Mich. 57, 97 N. W. 152.)

The defendant sold sulphuric acid to R., without properly labeling it; R. placed it on a shelf next to some cream; by mistake it was sold to the plaintiff, who drank it. Is the defendant responsible? (1905, Burk v. Creamery Package M. Co., 126 Ia. 730, 102 N. W. 793.)

The defendant sold a folding-bed to A., who placed it in her boarding-house; A. rented a room therein to the plaintiff. The bed was negligently constructed, and the plaintiff in using it was hurt. Is the defendant responsible? (1896, Lewis v. Terry, 111 Gal. 39, 43 Pac. 398.)

The defendant sold a side-saddle to M., husband of the plaintiff; the plaintiff, using it, was injured by reason of its defective materials. Is the defendant responsible? (1898, Bragdon v. Perkins C. Co., C. C. A., 87 Fed. 109.)

The defendant made and sold a quantity of oil to M., who sold to N., who sold to O., who sold a lampful to the plaintiff. The oil was dangerously explosive, by fault in its manufacture. It exploded and injured the plaintiff. Is the defendant responsible? (1875, Elkins v. McKean, 79 Pa. 493, 502.)

The defendant contracted with M. to make repairs on a van belonging to M. The defendant made the repairs negligently, so that afterwards a wheel came off while the van was being driven by the plaintiff, an employee of M. Is the defendant responsible? (1905, Earl v. Lubbock, 1 K. B. 253).]

[NOTES:

"Liability of a vendor to one with whom he has no contractual relation" (note). (A. L. Reg., 57 O. S., 563, 58 id. 445.)

"Manufacturer's liabilty for defects in machinery." (C. L. R., II, 58.) "Dangerous commodities: limit of owner's responsibility." (C. L. R., VII,

436.)

"Dangerous food: liability of packer." (C. L. R., VII, 437.)

"Liability of maker or vendor of a chattel to third person injured by its use." (H. L. R.)

"Nature and grounds of liability in general." (VI, 261; XV, 666; XVIII, 318; XIX, 372.)

"Class reasonably likely to use the article; liability to members of." (VI, 61; VIII, 291; IX, 224; X, 191, 529; XV, 666; XVI, 133.)

"Directions for excessive dose on bottle of patent medicine." (III,

227.)

"Tests as to what chattels are within rule." (XVII, 274.)

"Druggist selling proprietary medicine without knowing contents." (M. L. R., I, 63.)

"Liability of manufacturer to one not a party to the contract of purchase." (M. L. R., II, 151, 235, 422.)