38 N.J.L. 339 | N.J. | 1876
The opinion of the court was delivered by
The judge, at the trial of this cause, charged, among other matters, that as the evidence incontestibly showed that one of the defendants, Welwood, was the owner of the boiler which caused the damage, he was liable in the action, unless it appeared that the same was not being run by him, or his agent, at the time of the explosion.
This view of the law is in accordance with the principles maintained, with great learning and force of reasoning, in some of the late English decisions. In this class the leading case is that of Fletcher v. Rylands, L. R. 1 Exch. 265, which was a suit on account of damage done by water escaping on to the premises of the plaintiff from a reservoir which the defendant had constructed, with due care and skill, on his own land. The judgment was put on a general ground, for' the court said : “We think the true rule of law is, that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” This result was deemed just, and was sought to be vindicated on the theory that it is but reasonable, that a person who has brought something on his own property which was not naturally there, harmless to others, so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues, if he does not succeed in confining it to his own property. This principle would evidently apply to, and rule, the present case; for water is no more likely to escape from a reservoir and do damage, than steam is from a boiler; and, therefore, if he who collects the former force upon his property, and seeks, with care and skill, to keep it there, is answerable for his want of success, so is he who, under similar conditions, endeavors to deal with the latter. There is nothing unlawful in introducing water into a properly constructed reservoir on a person’s own land, nor in raising steam in a boiler of proper quality; neither act, when performed, is a nuisance per se; and the inquiry consequently is, whether in the doing of such lawful act the party who does it is an insurer against all
The only other cases which were referred to in support of the judgment under consideration, were those of a man who was sued for not keeping the wall of his privy in repair to .the detriment of his neighbor, being the case of Tenant v. Golding, 1 Salk. 21, and several actions which it is said had been brought against the owners of some alkali works for damages alleged to have been caused by the chlorine fumes escaping from their woiks, which works, the case showed,
But this consideration is also to be noticed, both with ■respect to this last case, and that of the injurious fumes from the alkali works, that in truth they stand somewhat by themselves, and having this peculiarity: that the things in their nature partake largely of the character of nuisances. Take the alkali works as an example. Placed in a town, under ordinary circumstances, they would be a nuisance. When the attempt is made by scientific methods to prevent the ■escape of the fumes, it is an attempt to legalize that which is ■illegal, and the consequence is, it may well be held that, failing in the attempt, the nuisance remains.
I cannot agree that, from these indications, the broad doctrine is to be drawn that a man in law is an insurer that the .acts which he does, such acts being lawful and done with care, shall not injuriously affect others. The decisions cited .sye not so much examples of legal maxims as of exceptions to such maxims ; for they stand opposed, and in contrast to ¡principles which it seems to me must be considered much more general in their operation and elementary in their nature.
The common rule, quite institutional in its character, is .-that, in order to sustain an action for a tort, the damage complained of must have come from a wrongful act. Mr. Addi
It is true that these cases of injury done to personal property, or to persons, are, in the case of Fletcher v. Rylands, sought to be distinguished from other damages, on the ground that they are done in the course of traffic on the highways* whether by land or sea, which cannot be conducted without exposing those whose persons or property are near it to some inevitable risk. But this explanation is not sufficiently com
It seems to me, therefore, that in this case it was necessary to submit the matter, as a question of fact for the jury, whether the occurrence doing the damage complained of, was
This view of the subject is taken in the American decisions. A case, in all respects in point, is that of Losee v. Buchanan, 51 N. Y. 476. The facts were essentially the same with those of the principal case. It was an action growing out of the explosion of a steam boiler upon private property, and the ruling was that such action could, not be sustained without pi’oof of fault or negligence. In that report the line of cases is so fully set out that it unnecessary here to repeat them.
The rule should be made absolute.