Thе verdict of the jury established the fact that Deveau was the agent of the defendant in shipping the nitro-glycerine in question, and that the same was shipped by Deveau in the due course of his business as such • agent, without giving any noticе to the plaintiff of the dengerous nature of the article shipped. Thе evidence was conflicting. The subject, however, was fairly submitted to the jury, undеr proper instructions, and their verdict must be held conclusive. The question is, whether there is an implied duty on the part of the shippers of goods of this dеscription to give notice of the dangerous nature of the goods to the ship owner, or the person who receives the goods in his behalf. Wе are of opinion that there is such a duty, and that the omission to perform it is an act of negligence which renders the shipper liable for the сonsequences.
The courts of king’s bench and of common pleas, in England, have held in several instances that such a duty exists, and we think those decisions rest upon sound principle, and ought to be regarded as enunciating a salutary rule of law. (Williams v. East India Co., 3 East, 192. Brass v. Maitland, 6 El. & B. 470. Faucet v. Barnes, 11 C. B. Rep., N. S., 553. See also Pierce v. Winsor, 2 Sprague, 35; Jeffrey v. Bigelow, 13 Wend. 518.) A similar principle was affirmed in the Court of Appeаls of this State, in Thomas v. Winchester, (6
Wе think no negligence can be imputed to the plaintiff in causing the package to be opened, after its arrival at San Francisco. It is true, the opening of the package was the immediate cause of thе disaster, for the consequences of which the defendant is sued. But it is quite reаsonable to infer that if the defendant had performed his duty, and given noticе of the dangerous character of the package, a different disposition of it would have been made, and the requisite care would have been taken to prevent an explosion. It was the duty of the plаintiff to take care of the package, and if possible, to stoр the leakage of its contents. He adopted the usual method of dоing this. He had no reason to apprehend any danger; nor was he warned that it was necessary to use extraordinary care in handling the package. It was the fault of the defendant that such warning was not given. Although, therefоre, it was the act of the plaintiff which caused the explosion, yet, for the reasons stated, such act was not a negligent one which disentitles him to recover. (Add. Law of Torts, 20, 21.)
There is nothing in the point that this action is local. The gravаmen of it is the negligence of the defendant,
We have looked into the other exceptions presented on behalf of the defendant, but find none of them tenable. Upon the whole case, therefore, our opinion is that the judgment should be affirmed, with costs.