50 A. 651 | R.I. | 1901
This is an action of trespass on the case for negligence. The declaration alleges, in substance, that the plaintiff was in the employ of George W. Dover, a manufacturing jeweler, and while engaged in operating a drop press, in which was a heavy weight held by a hook, the hook broke and the weight fell upon his hand and injured it; that the machine was manufactured by the defendant and sold to Dover; that it was the duty of the defendant to use due care in the manufacture thereof, but that the machine was negligently built and defective in this — that the hook was made of iron or steel of poor quality, of insufficient size; that the hook had been improperly welded, with cracks or crevices through the hook; that the defendant knew, or had reason to know, and, but for want of reasonable care, would have known, that the machine, when it was sold, was a dangerous appliance, liable to endanger the life and limb of an operator using due care by the breaking of said hook and the falling of the weight.
The defendant demurs to the declaration. The case raises the question whether the maker of a machine which he sells to another is liable to a third person for injuries arising from negligence in its construction. This question has frequently been before other courts, but it has not been raised before in this State.
Cases which involve the liability of a defendant to those with whom he does not stand in privity of contract may be grouped into three classes: (1) where the thing causing the injury is of a noxious or dangerous kind; (2) where the defendant has been guilty of fraud or deceit in passing off the thing; (3) where the defendant has been negligent in *383 some respect with reference to the sale or construction of a thing not imminently dangerous.
The principle that governs the first class of cases is that one who deals with an imminently dangerous article owes a public duty to all to whom it may come, and whose lives may be endangered thereby, to exercise caution adequate to the peril involved. This principle has been applied in many cases of the sale of poisonous drugs under a false label.
Such was the leading case in this country of Thomas v.Winchester,
A similar principle governs the second class of cases, in *384 which the degree of danger in the thing itself may be less, but where the seller actually knows of the danger in the article and puts it forth by some fraud or deceit. In such cases the breach of duty grows out of the fraud or deceit in the sale, and it extends to persons injured thereby, who may reasonably be deemed to be within the contemplation of the parties to the transaction. Thus in Levy v. Langridge, 4 M. W. 336, the allegations were that a father bought a gun of the defendant, for the use of himself and sons, upon the special warranty that it was made by a certain manufacturer, and that it was a good, safe, and secure gun, whereas it was unsafe, ill-made, and dangerous; that the defendant was guilty of willful deceit, negligence, and improper conduct in the sale, and that the gun burst in the hands of a son. The judgment was that, as there was fraud and damage, the result of that fraud not from an act remote and consequential but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud was responsible to the party injured.
In Lewis v. Terry,
In Davies v. Pelham, 72 N.Y. Sup. Ct. (65 Hun.) 573, and 83 N.Y. Sup. Ct. (76 Hun.) 289, remarks were made to the effect that the action could be maintained against the builder of a derrick for a painter by the administratrix of an employee killed by a defect therein, upon the ground of simple *385 negligence; but the case turned upon the fact that the defective rope had been selected by the deceased himself, and not upon the question about which the court expressed its opinion.
Bright v. Barnett,
The case of Schubert v. Clark,
Bishop v. Weber,
The third class of cases relating to the sale of a thing not in its nature dangerous rests on the principle that as to such things there is no general or public duty, but only a duty which arises from contract, out of which no duty arises to strangers to the contract.
The leading case of this class is Winterbottom v. Wright, 10 M. W. 107. The plaintiff was a mail coachman, who was injured by a latent defect in a mail-coach which the defendant, under a contract with the postmaster general, was to keep in good repair. It was held that the plaintiff could not recover. The grounds of the decision were that the case was not like Levy v.Langridge, for there the gun was bought for the use of the son, the plaintiff in that action, who could not make the bargain himself, but was really and substantially the party contracting. Here the action is brought simply because the defendant was a contractor with a third person; and it is contended that thereupon he became liable to everybody who might use the carriage." Also, that the case was not like those which amounted to a public nuisance, and hence raised a public duty; that, consequently, *387 there being neither privity of contract nor public duty, the action could not be maintained.
The case was followed in Collis v. Selden, L.R. 3 C.P. Cas. 495, where the defendant negligently and improperly hung a chandelier in a public house, which fell upon the plaintiff. The opinions in the case stated that, there being no public nuisance, no privity of contract, no fraud or concealment, no invitation, and no actual knowledge, the action would not lie. In both cases it was said that, there would be no end of cases if the action could be sustained.
It is needless to examine critically the numerous cases on this question, because they rest upon the application of the principles stated above. See Curtin v. Somerset, 140 Pa. St. 70, where a hotel was improperly constructed; Loop v.Litchfield,
We think that the result of the cases on this subject clearly establishes the weight of authority in favor of the rule that where the cause of the injury is not in its nature imminently dangerous; where it does not depend upon fraud, concealment, or implied invitation; and where the plaintiff is not in privity of contract with the defendant, an action for negligence cannot be maintained.
The reason for the rule is well stated in Thomas v.Winchester, as follows: "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. as 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 *388 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."
The declaration in this case simply charges negligence, without any of the other necessary elements, and hence the demurrer to the declaration must be sustained.