Francis H. (Francis Hermann) Bohlen.

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that evidence, it does not appear to me that unon it the jury could
reasonably find that the railway company ought, under the circum-


Stances in wliicli lliey left this train, reasonably to have anticipated
that the boys would do or might have done what they in fact did,
01 that there was at the time, known to the company, any such
risk of tiie j^articular acts of the boys which caused the accident
as called upon the railway company to take further precautions
against those particular acts ; and that being- so, it appears to me
that the findings upon which the learned judge below acted cannot
be relied upon on behalf of the plaintiff, and that the appeal ought
to succeed.

Stirling, L. J. I am of the same opinion. The real question
in this case is whether the findings of the jury in answer to the
fourth and fifth questions which were put to them by the learned
judge can be supported. In answer to the first three questions the
jury have found that the van was in a safe position as and where
it was left by the defendants' servants, unless interfered with after-
wards, and that the accident would not have happened if the van
had not been interfered with, and that the interference was the act
of trespassers, who acted negligently. Then what really happened
was that some boys got into or on the van and undiJ the brake
and couplings, and that this led to the accident.

Now, was there any evidence to shew that the company ought
reasonably to have anticipated such an occurrence? The learned
judge, twice in the course of his judgment, states what the facts
are. He says that for years the defendants had been troubled by
boys trespassing on this part of the line and playing in and about
vehicles standing upon it. and later on he says that, to the knowl-
edge of the defendants, the boys used to get into trucks and vans
and unlock the doors of the vans on the siding. That is the whole
length the evidence went. Nothing further has been called to our
attention. That has gone on for years, and no accident of any kind
had occurred. In these circumstances it does not seem to me a
fair inference to draw that the company ought to have reasonably
anticipated any such act as was actually done by the bovs in this
case or the result which came from it. Upon that ground I think
the appeal ought to be allowed. Appeal allozvcd.-

^ Accord: No duty to foresee or guard against malicious or criminal
act of third persons. Deyo v. R. R., 34 N. Y. 9 (1865) ; Fredericks v. iV. C.
R. R., 157 Pa. 103 (1893), trains intentionally wrecked. Wanton or mischiev-
ous acts of third persons; Daniels v. Potter, 4 C. & P. 262 (1830), cellar door
reasonably secured, disturbed by third party; Stcplicnsoii v. Cordcr, 71 Kans.
475 (190;), horse struck bv passerby broke its haUer and ran awav; Mars v.
R. R.. 61 N. Y. S. C. (54 Hun) 625 (1889) ; Bcrman v. Schultz, 81 N. Y. Supp.
647 (1903"), electric truck left unattended in street with power off and brakes
on. started by boys, but cf. Lynch v. Xurdin. i Q. B. (A. & E. X. S.) 29
(1841) ; Latch v. Rnmncr Ry. Co., 3 H. & X. 0^0 (1858), stone placed in lover
of "point" or switch; Manqan v. Atterton. 4 H. & C. 388 (1866). boy injured
by companion turning handle of machine, exposed for sale in market place, bt't
see criticism thereon in Clark v. Chambers. L. R. 3 Q. R. D. 327 (1878). p. t^iS:
Parker v. Cohocs. 17 X. Y. S. 531 (1877) : Dohcrfy v. Waltham, 4 Gray 596
(Mass. 1855), barriers, erected to prevent night traffic on streets torn up for
repair, removed by third persons.

Accord: No duty to foresee or guard against negligent acts of third
persons: Pearson v. Cox, L. R. 2 C. P. D. 369 (1877), tools negligentlv



In the Court of Exchequer, 1S64. 3 Hurlstone & Coltman, 461.

The plaintiffs' evidence tended to show that some bales of
cotton were insecurely piled in a warehouse by cotton porters acting
under the control of the warehouse-keeper but in the employ of the
defendant, a cotton merchant, to whom the bales belonged. A few
days after the plaintiff, being lawfully in the warehouse to recanvass
the bales of cotton of another cotton merchant, was injured by the
fall of one of the defendant's bales.

The trial judge directed a nonsuit. Rule for new trial. ^
Bramwell, B. I also think the nonsuit right. I assent, indeed,
to Mr. Littler's- argument, that the men employed by the defendant,
while engaged in piling the bales, were his servants, so as to render
him responsible for their acts. And if, while they were so engaged,
there had been any negligence on their part with reference to any
person lawfully passing by, I think the defendant would be liable.
The question may, therefore, be treated as if the defendant had piled
the bales himself. But suppose he had piled the bales, would he be
liable? I think not. For in that alone there would have been
nothing dangerous without the subsequent act of the warehouse-
keeper in permitting persons to approach the bales. Suppose the

dropped upon plaintiff, a passerby on the highway, by a plasterer at work on
the premises of defendant who had not put a hoarding over the sidewalk; Dan-
iel V. Metropolitan Railway, L. R. 5 E. & I. App. 45 (1871), a railway held not
bound to suspend the running of its trains during the time and at the point
where heavy girders are being moved over the tracks, affirming L. R. 3 C. P.
591 the reversal of a contrary decision of Common Pleas, Willes, Keating
and Montague Smith, JJ., L. R. 3 C. P. 216, on the ground that "though as
reasonable persons they must have known that girders, if negligently handled
are likely to fall, they had no reason to suppose that the persons who were
doing the work would do it so negligently as to hazard the happening of such
an event" — Blackburn, J., p. 594; Williams Adni. v. Woodward Iron Co..
106 Ala. 254 (1894), would seem to be a case of this class; the possibility of
cars getting beyond control while on a steep siding being recognized, a cut
off switch was provided which was open on this occasion ; a stranger, seeing
the cars out of control, through mistake, closed it and the runaway cars
got on the main track and collided with those in which plaintiff was; Bannon
V. P. R. R., 29 Pa. S. C. 231 (1904), defendant's fence fell with weight of
crowd pressing against it to see plaintiff, a police officer, make an arrest;
Grogan v. R. R., 213 Pa. 340 (1906), similar facts, passerby injured: Leavitt
V. Bangor R. R., 89 Me. 509 (1897), fire negligently started by workmen of
independent contractor while using cars furnislied by defendant : Chaddock y.
Plummer, 88 Mich. 225 (1891) ; Harris v. Cameron, 81 Wis. 239 (1891), air
guns given to young children and carelessly used by them or their friends;
Poland V. Earhart, 70 Iowa 285 C1886), firearms sold to minor in violation of
statute; cf. Hagerty v. Powers, 66 Cal. 368 ("1885"). loaded revolver given as
plaything to boy of eleven — the only point discussed, however, was a father's
liability as such for the torts of a son ; Szvanson v. Crandall, 2 Pa. S. C. 85
(1896), loaded revolver kept in top drawer of bureau, removed and fired by
five-year-old child. Compare Dixon v. Bell, 5 ]\I. & S. 198 (1816) ; Binford
V. Johnson, 82 Ind. 426 (1882) ; and Sullivan v. Creed, I. R. 1904, 2 K. B. 317.

* The facts are restated.

' Counsel for plaintiff.


defendant liad been present, and had pointed out to the warehouse
keeper that the mode in which the bales were piled was dangerous.
The warehouse keeper might surely have replied that that was his
business, and that he would take the necessary steps to prevent any
one coming near the bales. If from his subsequent omission to do
so any mischief had occurred, the defendant would not be respon-
sible for that mischief. Take this case. A. delivers at B.'s house
goods which, from their nature, cannot at once be taken in. B.
says : "Put them down in the highway, I will remove them directly,
and will see that in the meantime no one runs against them." A.
complies. The goods remain out all night, there is no light,_ and
some one is injured. Who is responsible? B., the owner of the
house, and not A., for though A.'s act be wilful, it would not be dan-
gerous without B.'s subsequent negligence. So here the defendant
is not responsible for an act which would have produced no mischief
without the warehouse keeper's subsequent negligence. If, indeed,
the negligence were of a covert kind, so as to be less obvious to the
warehouse keeper than to the men engaged in piling the bales, that
might be a different case. For the warehouse keeper might then
have no notice of the danger, and so the mischief might occur with-
out any subsequent wrongful act on his part. But here the danger
was at least as patent to the warehouse keeper as to the men ; and
the men were acting under his control, and the act in itself w ould
n.otTiaA'e caused_llie - a2i5£hief,_The warehouse keeper is liable, if

Rule discharged.*

any one.^

Supreme Court of Nezv Jersey, 1898. 62 N. J. L. 7}

Rule to show cause why the verdict for the plaintiff should not
be set aside.

LiPPiNCOTT, J. There was evidence tending to show that on
going from the waiting room in defendant's station into a passage-
wav leading to the baggage room plaintiff was knocked down by a
hackman who was scuffling with another in the passage. Evidence
was admitted, over objection by the defendant, that hackmen. in-
cluding the two who engaged in this scuffle, had been in the habit

'The opinions of Clianncll and Pigott, B. B., concurring, are omitted.

* Accord: Sclieaffcr v. Iron City Sand Co., 31 Pa. S. C. 476 (1906^ sand
dumped on sidewalk of purchaser as by him directed, and left there unguarded

by him.

Where a premises or chattel is transferred by sale, lease or loan to a
responsible third person fully aware of its actual character. the_ transferror
is not. normally, bound to contemplate, nor is he liable for, its misuse by the
transferee, see editor's Basis of Affirmative Obligation in the Law of Tort.
53 Am. Law Reg. (44 N. S.), p. 273-276; 340 ct scq: alitcr if a defect known
to the transferror is concealed or not disclosed to the transferree, ibid., p. 289;
370 et seq.

* Affirmed in Court of Errors and Appeals. 63 N. J. L. 356 (1889).


of taking their stand in and about the passageway to soHcit trade
and similar scut^ings had been of frequent occurrence and that
notice thereof had been given to the defendant's general passenger
agent. -

This, evidence was properly admitted to the jury, first, as tend-
ing to show the dangers connected with the use of this way to the
baggage-room, of which j\Irs. Exton could have no previous notice
or knowledge, and of the character of the danger, it being such
as that its existence could not be previously observed by any pas-
senger in the use of the walk; and secondly, as tending to show
that the servants of the defendant in charge of the station had
knowledge of these occurrences and dangers on that walkway, or
should have had knowledge of them, in the exercise of reasonable
care to guard its passengers against accidents and injury from situa-
tions of danger likely to arise whilst under its care. The evidence
\yas admissible for the jury to reach a conclusion whether this
scuffling, in short, was a danger to which passengers were subjected,
of such frequent and notorious occurrence that a reasonable infer-
ence could be drawn that the defendant, through its employes in
charge of the depot, did have, or should have had, knowledge of
the dangers there existing, or should reasonably have anticipated
them, and whether they were such that the defendant should guard
against, and whether, in failing to do so, it was guilty of such
negligence as rendered it liable to passengers injured thereby. * * *

The walkway, therefore, being provided by the defendant com-
pany for the use of the traveling public for the purposes of travel
on its ferryboats and railroad trains, the defendant company were
bound to use reasonable care to keep it safe for the use of their
passengers. It was one of the means which the plaintiff had the
right to use for the purpose of getting her baggage checked and
obtaining her checks therefor, preparatory to going across the ferry,
or for any other lawful purpose connected with her journey, and
she had the right to assume it was reasonably safe for her to use
for any such purpose, and the company was bound to exercise rea-
sonable care to render it suitably safe for her. Delan'are, Lacka-
wanna and Western Railroad Co. v. Trautzvcin, 52 N. J. L. 169.
The defendant company had the right to eject anyone creating dis-
(jrders or disturbance there, or annoying the passengers, or engaging
in such conduct as might injure them, and to take such measures in
these respects as would render it safe. Kalamazoo H. & B. Co. v.
Sootsma, 84 Mich. 194 ; Ray Negl. Imp. D., sees. 32, 46, and cases

It was proper to submit to the jury the question of the dan-
gers of this way. and whether they were habitual, customary dan-
gers which the defendant could reasonably anticipate might exist,
and whether they were such as required precautions against acci-
dent and injury to passengers therefrom, and whether the defend-

*The statement of the facts and of the evidence admitted are condensed-
from those given in the opinion.


ant had exercised the required degree of care and caution to pro-
tect its passengers from sucli dangers. ^1 f the (^fendant had notice

__iiiL know ledge of what might happen in its depot, or could reason-
ably anticipate what might happen there dangerous to others law-
-fully there, it was bound to use care to avoid the injury which might

■^be occasioned, and it would matter little whether the danger was
habitually existing or might occur only at intervals.^ Xor can it
nfatter but little whether the dangers arose from the acts of the
servants and employes or, others, so long as the dangers existing
were not observable by the passenger so as to be avoide(l, and they
were known to or ought to have been known to the defendant, or
anticipated by che officers of the defendant company in charge of
the station. * '" *

The evidence in the case justified the verdict of the jury, and
therefore the rule to show cause is discharged, with costs.^



In the King's Bench, Ireland, 1903. /r. R. 1904, 2 K. B., 317.

This was an application on behalf of the plaintiff to set aside a
verdict and judgment entered for the defendant, and to enter judg-
ment for the plaintiff for £50 damages, or for a new trial.

The action was brought by the plaintiff, a boy of sixteen years
of age, by his next friend, for the recovery of damages against the
defendant for negligence.

The defendant left a gun loaded and at full cock standing in-
side a fence on his lands, beside a gap from which a private path
led over defendant's lands from the public road to his house. The
defendant's son. Daniel, age between fifteen and sixteen, coming
from the road through the gap on his way home from Mass. found
the gun. He went back with it to the public road, and not knowing
that it was loaded, pointed it. in play, at the plaintiff*, who was on
ihe road. The gun went off, and the plaintiff was injured.^

It was admitted on both sides at the trial that the question was

^Accord: Knhlcn v. Boston St. Railway, 193 Mass. 342 dgo?"*. passen-
ger injured by crowding of fellow-passengers during "rush" hours at Subway
station; Mulfwuse v. R. R., 201 Pa. 237 (190O ; Kennedy v. P. R. R., 32 Pa.
S. C. 623 (1907), passenger in station injured by good natured but disorderly
crowd oi students assembled to welcome a victorious football team— but cf.
Cannon v. R. R., L. R. 6 Ir. 190 (1879), passenger injured by disorderly
crowd of harvesters; Cobb v. R. R., L. R. 1S94. A. C. 419— ard see also as to
duly to protect passengers from casual acts of rudeness, bad manner- or care-
lcs=nes■^ of fellow-passengers— /:///;k7<''' -e- P- W. & B. R. R.. I53 Pa- 213
( 1893), and Graeff v. R. R.. i6t Pa. 230 (1894^ : Dufttr v. B. & M. R. R.. 75
Vt. 165 (1905), train side tracked in line of a rifle range maintained by adja-
cent owner. See also Thompson v. R. R.. 170 Mass. 577 (1898) ; Thornton v.
Maine Aq. Soc.. 97 Me. 108 (1902), injuries received by spectator at public
resort, from acts of independent contractors carrying on amusements or giv-
ing exhibitions thereon.

' The facts are restated.


one of law, and that it was desirable to take the opinion of the jury
on the question of damages. The only question left to the jury
was, to what damages was the plaintiff entitled, assuming that he
was entitled in point of law to succeed. They found £50, and then
by direction of Kenny, J., the jury found a verdict for the defend-
ant, and the learned judge gave judgment for the defendant. It
was agreed that the Court should be at liberty to draw all proper
inferences of fact, and that if the verdict was changed the damages
were to be £50.

Boyd, J. As to the first point, I am not satisfied that the de-
fendant was guilty of actionable negligence in leaving his gun where
he did. It was left by him on his own lands and not exposed to
l.)ublic view, and where he could not reasonably expect that it
would be interfered with by anyone. The stile near to which it was
left admitted to a private pass to his own house, and no person had
a right to use it except members of his own household. How
many persons his household consisted of does not appear, and the
only one mentioned in the evidence is his own son, through whose
default the unfortunate accident happened. Where his son was
on the morning in question does not appear except at the time of
the occurrence. Could it be contended that if the defendant had
left the gun loaded and cocked in his own room in the house he
would be guihy of negligence? The gun, if not interfered with,
could do no injury to anyone. Suppose he had locked it up in a
press, he clearly would not have been negligent, even had he left
the key in the lock. The mere fact that the gun was so left would
not, I think, constitute actionable negligence. Had he sent some
person to fetch it to him, and omitted to inform the person that
it was loaded and cocked, or had he sent a young, inexperienced
child for it, I think he would be responsible, though he should have
cautioned the child.

As to the second point, Mr. Sullivan contends that even though
the defendant was guilty of negligence, it does not follow that he
can be held responsible for injuries that have resulted, not from the
direct consequence of such negligence, but from circumstances
which he could not or should not reasonably anticipate, and which,
in all human probability, would not have happened.

There is no evidence in this case that the defendant should
reasonably have contemplated that his son would return home by
the way he did, or even if he might have so contemplated that he
should have reasonably thought that a boy of his age would do
what he did when he found the gun.

I am of opinion the decision of Mr. Justice Kenny is cor-
rect, and that the defendant is entitled to hold the verdict which
was directed for him.

Gibson, J. Our decision depends on the answer to the question,
was the misfortune the direct consequence of a danger which a
prudent man ought to have perceived? It is immaterial that the
specific mischief was not actually foreseen. The possessor of a
dangerous article is bound to exercise diligence for the protection


of those likely to be injured by a probable use of such article. Thus,
there is actionable liability where the vendor of a dangerous com-
modity, without warning, sells it to a purchaser presumably un-
aware of such danger: Clarke v. Army and Navy Co-operative
Society, Limited ( [1903], i K. B. 155 j ; where a master entrusts t(j
a young and unfit messenger a gun negligently left loaded which it
was his duty to have made safe: Dixon v. Bell (5 M. & S. 198) (the
short and unsatisfactory report of which case must be read in con-
nection with the reports of the trial and charge of the Chief Justice
in I Starkie, 287, and Holt, 233) ; where a railway company omits to
guard against the known risk arising from boys being in the habit of
trespassing on a particular part of their line: McDoivall v. Great
Western Kaikcay ([1902] i K. B. 618); where a schoolmaster,
being in the position of father towards his boys, leaves an explosive
in a conservatory to which his pupils have access: Williams' Case
(10 Times L. R. 41) ; where a person leaves a dangerous thing in a
place where he ought to know it is likely to be set in motion, or used
(even without authority) to the injury of anyone: Lynch v. Nurdin
(i Q. B. D. p. y:, ) ; Clark v. Chambers (3 Q. B. D. p'. 339).

The principle of these cases is clear, but "the tendency of a
given act to cause harm under given circumstances must be deter-
mined by experience" (Holmes on the Common Law, pp. 147, 162).
As to the circumstances necessary to be knowm to make a man
liable for the consequences of his act, "they must be such as would
have led a prudent man to perceive danger, though not neces-
sarily to see the specific harm"; Holmes, supra, p. 147.

The question of liability depends on the particular circum-
stances, including the nature of the dangerous article, the place, the
persons likely to be brought in contact with it, and the time.

A hatchet, a bottle of poison labelled "poison," the same bottle
unlabelled, a loaded gun, gunpowder, or dynamite, all represent
articles of varying degrees of danger, and the greater the danger
the higher is the standard of the diligence which the law exacts.
Where the article is known, according to common experience, to
exercise an allurement, temptation, or fascination even — particularly
over young persons — to meddle with it, the utmost care ought to be
taken. Firearms and fireworks would come within this category.
So as to place: a loaded gun left on a highway or school play-
ground, or in the hall of a house open to young children, w^ould be
dangerous in a way that the same weapon would not be if it was
forgotten on a mountain, or was left in a shooting lodge tenanted
by sportsmen.

The same considerations apply to the persons likely to be
thrown in the wav of the dangerous article, and also to the time
when the occurrence takes place. Young persons are more likely
to be imprudent than those of mature years ; and it would be more
dangerous to leave perilous articles about in the daytime than at

The question before us is whether, under the circumstances
proved in the case, having regard to place, time, and persons likely


to see the weapon, a prudent person ought to have foreseen danger
to others from the gun being left where it was, exposed on full
cock. The evidence is unfortunately meagre, as plaintiff's counsel
appear to have treated the question as one of pure law rather than
as a question of fact depending on circumstances. The nature of
the farm, the locality, distances, the inmates of the defendant's
home, of whom I assume the boy was one, and their ages, the exact
character and user of the path, the son's movements that day, the
character of the weapon, whether muzzle-loader or otherwise, and
other matters of fact, are not explained. The defendant himself
was not examined.

With much of the argument of defendant's counsel I am quite
unable to agree ; such as that the gun being deposited on private
property, the defendant was under no duty to those who might be
injured by it on the high road; or that the son's going back to the
road after he took up the gun could not have been in any reason-
able man's contemplation. The defendant owed a duty to every
one likely to be injured by a negligent use of the weapon, if a
prudent person ought to have foreseen some such use ; and the
danger to be guarded against cannot be confused with the specific
form of the negligent handling of the firearm. The master in Dixon
v. Bell, 5 M. & S. 198, never thought for a moment that the girl,
after laying aside the gun (which she had been led to believe was
safe), would have unexpectedly taken it up again and pointed it at the
child. The argument that the handling and use of the gun were

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 30 of 124)