Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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the many cases where employes are injured by the negligent use by their
fellow-employes of defective tools and appliances furnished by their master;
R. A. v. Cunimings, 106 U. S. 700 (1882); Armour v. Golko'ix'ska, 202 111.
144 (1903); A. A. V. Pcrriquey, 138 Ind. 414 (1893); Wallace v. Henderson,
211 Pa. 142 (1905), and Ldbatt, Master and Servant, Vol. II, 2249, n. i, but
see, Phila, etc., Co., v. Davis, iii Pa. 597, and Labatt, Master and Servant,
Vol. II, 2231, n. 1.

Acts deliberate and careless or miscliievous, but the particular conse-
quence not intended. Dangerous articles exposed in places where persons,
who by reason of their youth or known character are apt to meddle with
them, are known to be wont to congregate. Horses left unguarded and unse-
cured in street. Lynch v. Xurdin, i A. & E. N. S. (Q. B.) 29 (1841),
horse started by child in play; Engelhart v. Farrant, L. R., 1897, i Q. B.
240, defendant's driver leaves cart in charge of boy who, though forbidden
to drive it, does so and injures plaintiff — held per. Eshcr M. R. Lopes and
Rigby, L. J. J., that defendant was liable; Thompson v. Piatt, 44 App. Div., N.
Y. 291 (1899), if horse were insufficiently tied, a charge, that defendant was
liable though boys by teasing and throwing stones at it, excited it and caused
it to break loose, was correct; Cf. Berman v. Schultz, 81 N. Y'. Supp. 647
(1903), electric truck left in street with brakes on and power shut off, started
by boys who released brakes and turned power lever, and Mars v. D. & H.
C. Co., 61 N. Y. Sup. (54 Hun) 625 (1889), unknown third parties started
engine left on siding; and see, Romer and Vaughan Williams, L. J. J.,
McDozvcll V. A. A., L. R., 1903, 2 K. B. 331, pp. 338 and 336, and see com-
ments of counsel on Engelhart v. Farrant, p. ZiZ; and see the very interesting
case of Dominion Gas Co. V. Collins. L. R. 1909 A. C. 640, where Lord
Duncdcn said, "In the case of articles dangerous in themselves, such as loaded
firearms, poisons, 'explosives and other things, ejusdem generis, there is a
peculiar duty imposed upon those who sent forth or installed such articles,
when it was necessarily the case that other parties would come within their
proximity. The duty being to take precaution, it was no excuse to say that
the accident would not have happened unless some other agency than that
of the defendant had intermeddled with the matter. . . . On the other
hand if the cause of the accident was not the negligence of the defendant,
but the conscious act of another volition, then he would nof be liable. For
against such conscious act of volition no precaution could really prevail."
It was held that the care required was of the highest and that negligence
sufficiently appeared from a finding that the safety valve opened, not into the
open air where the escaping gas would be harmless, but into a confined space
(a .j:oom) in which it was explosive and dangerous. Ace. also, Harriman v.
R. R., 45 Ohio II (1887), torpedo left unexplodcd on track where children
were accustomed to play; True &■ True v. Woda, 201 111. 315 (1903), ma-
terial carelessly or improperly piled in street, thrown down by children in
play; Hughes v. Macfie, 2 H. & C. 744 (1863), cellar door placed against
wall at dangerous angle, cf. Mangan v. Attcrton, L. R. i Exch. 239 (1866), but
see criticism thereon, L. R., 3 Q. B. D., p. 338. Creed v. Sullizan. I. R.. 1904,
2 K. B. 317, boy thinking a gun unloaded points it at friend; Dannenhozcer v.
Tel. Co., 218 Pa. 216 (1007), fallen telegraph wire brought into contact with
live wire and so rendered dangerous by acts of children in play; Harrison v.
K. C. Flee. L. Co., 195 Mo. 606 (1906"), circuit completed by plaintiff's son
cutting a wire in two; Pa. Steel Co. v. Wilkinson, 69 Atl. Rep. 412 (Md.,
1908), horse frightened by bystanders (whether adults or children does not


Supreme Judicial Court of Massachusetts, 1904. 185 Massachusetts, 315.

jMorton, J. These two cases were tried and have been argued
together. At the close of the plaintiffs' evidence in the Superior
Court the presiding Judge ruled at the defendant's request that the
plaintiffs could not recover and directed verdicts for the defendant.
The cases are here on exceptions by the plaintiffs to these rulings.

The case of the plaintiff Rachel, who is a married woman, is for
injuries alleged to have been received by her in consequencs of the
negligence of, the defendant in having a large reel by the side of or
in Cameron Street in Clinton, which some boys rolled down the street
and which struck the carriage in which the plaintiff was driving and
threw her out and caused the injuries complained of. The other ac-
tion is by her husband for the loss of consortium and the expense in-
curred by him because of the injuries to his wife.

The evidence would have warranted a finding, and for the pur-
poses of these cases we assume that such was the fact, that the reel
belonged to the defendant and had had feed wire upon it which had
been strung upon its poles by persons in its employ. But it is not
clear whether the reel was left on a vacant piece of land just out-
side the limits of the highway, or whether it was left within the loca-
tion of the highway. We assume as most favorable to the plaintiffs
that it was left within the limits of the highway. The uncontra-
dicted testimony shows, however, that it was left outside the travelled
portion of the highway lying on its side in the grass in a secure posi-
tion. The plaintiffs introduced in evidence a by-law of the town
forbidding persons to leave obstructions of any kind in the highway
without a written license from the road commissioners or other board
having charge of the streets, and they contend that, if the reel was
left within the location of the highway when forbidden by the by-
law, that of itself constituted such negligence as renders the defend-
ant liable. But the most, we think, that can be said of this conten-
tion is that the leaving of the reel within the limits of the highway
was evidence of negligence, not that in and of itself it rendered the
defendant liable or should be held as matter of law to have contrib-
uted directly to the accident. Hanlon v. South Boston Railroad, 129
Mass. 310. The question is whether in leaving the reel lying on its
side in the grass near the road the defendant ought reasonably to
have anticipated that children passing along the street on their way
to school, or for other purposes, would take it from the place where
it had been left, and engage in rolling it up and down the street, and
that travellers on the highway would thereby be injured. The ques-
tion is not whether a high degree of caution ought to have led the
defendant to anticipate that such a thing might possibly occur, but
whether it ought reasonably to have been expected to happen in the
ordinary course of events. In the former case the defendant would
not be liable, and in the latter it might be held liable, nothwithstand-
ing an active human agency had intervened between the original
wrongful act and the injury. The case of Stone v. Boston & Albany

appear) swinginc? a rope hung by defendant across the highway; Dcmpsey
V. D. C, 13 i). C. App. 533 (1898), substantially similar facts. Cf. Shotzvcll
V. Reading, 5 Ohio N. P. 241 (1896"); Byrne v. Wilson, 15 Tr. C- L. 31;?
(1862), plaintiff was thrown in a dock of a canal by the negligence of tne


Railroad, 171 Mass. 536, furnishes an illustration of the former class
of cases, and the case of Lane v. .Ulantic Works, 11 1 Mass. 136, of
the latter.

It is clear that the plaintiff Rachel was in the exercise of due
care. But assuming that the reel was left in the highway and that
that was some evidence of negligence, we think that such negligence
was the remote and not the direct and proximate cause of the plaintiff
Rachel's injury. The material facts with the inferences to be drawn
from them are not in dispute, and in such a case the question of re-
mote or proximate cause is one of law for the court. Stone v. Bos-
ton & Albany Railroad, lyi Mass. 536, 543. McDonald v. Snelling,
14 Allen, 290, 299. Hohbs v. London & Southn'cstcrn Raihvay, L.
R. 10 Q. B. Ill, 122. The defendant's servants left the reel in a se-
cure position lying on its side in the grass outside the travelled part
of the street, and not in immediate proximity to it. As the reel was
left it was entirely safe. It was not possible for a slight or accidental
movement to set it in motion so as to injure others, as in the case of
Lane v. Atlantic Works, nhi supra. The reel was large and cumber-
some and required active effort on the part of a number of children
to move it, from the place where it had been left, on to the travelled
part of the highway, and set it in motion. And in order to injure the
plaintiff or any other traveller on the highway it was necessary that
it should be set in motion at a time when the plaintiff or other travel-
lers were passing along the highway. In other words, in order to
render the defendant liable, it must appear, not only that it should
have anticipated that in the. ordinary course of events school chil-
dren would take the reel from the position where it had been securely
left outside the travelled part of the road, but that they would set it
in motion on the highway under such circumstances that it was liable
to injure a traveller thereon. It seems to us that, conceding that
there was evidence of negligence on the part of the defendant in
leaving the reel where its servants did, they could not be required to
anticipate that this would happen in the ordinary course of events,
and therefore, that the negligence was too remote. See Spcake v.
Hughes, (1904) K. B. 138. Exceptions overruled. ^

driver of defendant's omnibus and drowned. A plea that her death was
caused by the willful act of the lockkeeper letting in the water was held bad
on demurrer.

* Accord: Marsh v. Giles, 211 Pa. 17 (1905), defendant having left
a large stone leaning against an electric light pole, the plaintiff, 7 years old,
suggested to a companion, a year older, that they use it to jar the pole as
they had seen a policeman do. The elder boy drew back the upper edge of
the stone and let it fall on the plaintiff's hands which were around the pole;
Murphy v. R. R., Irish R., 2 Q. B. (1897). 301, baggage truck placed near top
of stairs, thrown down by fighting out-porters. See, especially, Gibson, J.,
p. 312. The company "would not be answerable if the truck was deliberately
or wilfully set in motion by an outsider."

As to effect of defendant's knowledge of what third persons h.Td done
on other similar occasions as enlarging the extent of their expectable inter-
ferences, — see, Vaughan Williams. L. J., McDo^crll v. Raihcay. L. R., 1903.
2 K. B., p. 336. See. however, BcUino v. Columbus Co., 1S8 Mass. 430, p. 433
(1905"), where defendant knowing that the plaintiff's ser\-ants were in the
habit of stealinc: gasoline from its storehouse and negligently using it to light
fires in plaintiff's building, continued to leave the storehouse unlocked.

No liability attaches to one who by his wrongful act creates a condition



Court of Sessions, Scotland, 1899. i Session Cases, sth Sec, 1060.

The Glasgow Central Railway Company were incorporated
by the Act 51 and 52 Vict. cap. cxciv., and were authorized, inter
alia, to make a railway underneath Argyle Street, Glasgow.

By section 50 of the Caledonian Railway Act, 1889 (52 and 53
Vict, cap L.), the whole undertaking and powers of the Glasgow
Central Railway Company were transferred to the Caledonian Rail-
way Company.

In the course of constructing the railway, the Caledonian Rail-
w^ay Company found it necessary to underpin the premises. No. 227
Arg}de Street, occupied by Alexander Marshall, hardware merchant.
These premises consisted of a shop on the street floor, and a cellar
below, which was lighted by a window fronting a small area under
the pavement. This area was covered by an iron grating. To enable
the underpinning to be done, the railway company removed the wall
of the area and pavement in front of the premises, and, having con-
structed a retaining wall they built the wall of the area in May, 1895.

In April, 1897, Alexander Marshall raised an action in the Sher-
iff Court at Glasgow against the Caledonian Railway Company for
payment of £300 as damages. He alleged that in rebuilding the wall
of the area the defenders had culpably left an opening in it, through
which one of their workmen, John McGuire, had obtained access to

which affords a third person, legally responsible or not, an opportunity to
do a deliberate, intentionally harmful act to another. Alexander v. Town of
New Castle, iiS Ind. 51 (1888), a Deputy Sheriff deliberately thrown by a
prisoner into an excavation negligently left in a highway; Loftus \ Vehail,
133 Cal. 214, p. 219 (1901), a child thrown by little brother in a fit of tempel
into a pond left unguarded in vacant lot where children were known to

congregate. ,

One who uses premises or chattels is bound to see that they are ht tor
the use to which he puts them. One who supplies them in a defective and
dangerous condition, by sale, lease, loan or otherwise and has parted with
all interest in their further use, is not liable for the harm caused by their
use for a purpose for which their condition rendered them unfit if such con-
dition is made known or is open or obvious. Goodlander Mill Co, v.
Standard Oil Co.. 63 Fed. 400 (C. C. A. 7th .Circ 1894). even though he
knew of the probabilitv of their misuse; Marvin Safe v. Ward, 40 N. J. J^-
19 (1884), semble. So one who directs another to do an act proper in itself
is not liable because he has reason to believe it probable that it will be done
improperly, Sowell v. Champion, 2 Nevile and Perry 627, p. 034 (i837)-
Aliter if the condition be latent and undisclosed and the use one which would
be proper if the article was as it appeared to be. Standard Oil Co. v. Wake-
field, T02 Va. 824 (1Q04), see also, B. & A. R. R. v. Shanley, 107 Mass. 568
f 187T) : Farrant v. Barnes, 11 C. B. N. S. 553 C1862). See, as to neghgent
use by third persons of premises openly defective, Patvcett v. R. R., 24 W.
Va 755 (1884). See also, Carter v. Towne, 103 Mass. 507 (1870), vvhere
explosives wrongfullv sold to a child are by him placed in the custody of
his parent to whom 'the vendor might lawfully have sold them, the vendor
is not liable for the parent's act in giving them, with full knowledge of their
character, back to the child.


the area, and thence to the cellar and shop, where he had stolen
goods to the value of the amount sued for.

The defenders denied having left any aperture in the area wall.

The defenders jjleaded. inter alia; — (7) The loss and damage
condescended on being due to the wilful and criminal act of the said
John McGuire . . . the defenders should be assoilzied. (())
In any event, the loss and damage condescended on not being the im-
mediate or natural result of the defenders' operations, the defenders
should be assoilzied.

On nth July, 1898, the Sheriff-substitute fStrachan) pro-
nounced the following interlocutor: — (After preliminary findings)
— "Finds that, in rebuilding the said area wall, an opening was left
therein wliicli was sufficient to admit of a person getting from the
underground works of the defenders into the pursuer's premises:
Finds that on various occasions between the months of ^lay and Oc-
tober, 1895, a nian named John McGuire, who was employed at the
said works, entered the pursuer's premises through the said opening,
and stole and carried away large quantities of goods belonging to the
pursuer of the value of at least £300: Finds that the opening
through which the said premises were entered as aforesaid was left
in the said wall through the fault or negligence of the defenders or
those for whom they are responsible, and that they are liable to the
pursuer for the value of the goods stolen from his premises as afore-
said : Therefore decerns against the defenders for payment to the
pursuer of the said sum of £300: Finds the defenders liable in ex-

The defenders appealed, and argued, inter alia; — Assuming it to
be proved that the defenders left an opening in the area wall, the loss
sustained by the pursuer was due to the criminal act of a third party,
and the ordinary rule was that one person was not responsible for the
crime of another. The theft was not the natural result of the de-
fenders' negligence in leaving the opening. The chance of the open-
ing being used by a thief was so remote that no action lay. Vicars v.
M^ilcocks, 1806, 8 East. i.

Argued for the pursuer ; — When statutory powers were given to
a railway company to do work which necessarily interfered with the
security of premises, there was an implied obligation upon them to
safeguard the proprietors of such premises. If they negligently
failed to discharge that obligation, by leaving a passage open to a
thief, as in the present case, they were responsible for the loss sus-
tained by the proprietor, which was the natural consequence of their

Lord President (Sir J. P. B. Robertson). ^ — Well now it seems
to be perfectly plain that" if the railway company under statutory
powers desire to open up a man's premises they are bound to fill up
the aperture completely, and that one of the ordinary risks against
which walls are expected to stand as a safeguard is theft. As the
Sheriff pointed out. the man who was superintending the construc-
tion of this work mentioned that he considered it part of his duty to

*The portion of the opinion reviewing the evidence is omitted.



guard against thieves. I am not prepared to say that if the company
have the misfortune to have a thief amongst their workmen, it is not
Hkely he will cast his eye ten feet up and see this hole, and make such
use of it as was congenial to his propensities, and accordingly on this
second point I am against the defenders.

(His Lordship then proceeded to deal with the question of the
amount of damages allowed by the Sheriff).

Lord Adam. — (After expressing his concurrence with th
Lord President on the evidence) — Assuming it to be true that the
railwav company left this hole in the original wall, does it follow in
law that the company are liable? It was said by Mr. Balfour that it
was difficult to connect the loss of the pursuer through the criminal
action of a third party with the defenders' negligent act in leaving
the wall in that state. I cannot take that view. Not only is it said
that the attention of the railway company was drawn to the fact of
the danger arising from a matter of this sort, but I think looking to
the number of employees of the Caledonian Railway Company who
were engaged in the work, and who had access to the spot all along,
it was not improbable that some loose character might be employed
amongst them, and if that should happen I think that it was very
probable that this hole would be made use of, as it was made use of,
and there is nothing in that which would relieve the company of lia-
bilitv. As to the amount of damages I also agree with your Lord-
ship'. On the whole matter I should be loath to disturb the opinion
of the Sheriff-substitute. ~


Court of Appeals of Nezv York, 1889. 112 A''. Y. App., 223.

RuGER, Ch. J. We think this was a case for the jury in all of its
aspects. The plaintiff's intestate was the driver of a cart employed
to deliver coal at the court-house in the city of New York. _ While
engaged in the performance of this duty a heavy iron grating fell
upon him and inflicted injuries from which he subsequently died.
This grating hung on hinges and was used to cover a hole or hatch-
way in the sidewalk leading into the basement of the court-house,
through which the coal was to be delivered. While the work of de-

' Accord: De la Bere v. Pearson, L. R., 1907, i K. B. 483; 1908, i
K B. 280, a reader of defendant's newspaper had her money embezzled by
broker recommended to her without proper investigation as to character by
the financial editor; Cf. Baxendale v. Bennett, L. R., 3 Q. B. D. 525 (1878),
where the question presented was whether defendant, who had left a bill
accepted in blank, in an unlocked desk whence it was lost or stolen, was
guilty of any negligence toward one who had discounted it, the finder with-
out authority having filled it in.

.See also. Henderson v. Dade Coal Co.. too Ga. 568 ri897), a lessee of
convicts carelessly permitting one, a negro of the lowest type, to escape held
not liable for a rape committed by such negro; Ballinger v. Radcr. 151 .\.
Car. 383 (1909), 153 N. Car. 488 (1910), the keeper of an insane asylum, who
negligently discharged as cured a dangerous maniac, held not liable for a
murder committed by him; HnUinger v. Worrell. 83 Til. 220 (1876), a Sheriff
negligently permitting the escape of a prisoner under indictment for assault,
with intent to murder the plaintiff, not liable for renewal of assault.


livery was in progress this grating was intended to be thrown back
against the side of the building. It then stood nearly upright, and
when unfastened was liable to be thrown down by the slightest jar
or interference. '

The evidence tended to show that the grating, while thrown
back to permit the dumping of coal, was dangerous and liable to in-
flict injury upon those engaged in that business, unless securely fast-
ened by a hasp, hook or other contrivance. It also tended to show
that the appliances furnished by the city were wholly inadequate to
efTect the purpose. A case of substantially undisputed negligence
was made out against the defendant.

Upon the trial the plaintiff was nonsuited upon two grounds,
viz.. first, that negligence producing the injury was imputable to
Purcell. a co-servant of the deceasecl, for which the defendant was
held not to be liable ; and, second, that the deceased was himself, as
matter of law, guilty of contributory negligence. ^

Purcell and the deceased were in the employ of the contractor
delivering the coal, not of the city ; Purcell, who was with the load
preceding that of the deceased, with the help of others, raised the

We are not aware of any rule ^vhich exempts -a-wj-ongdocr from
the consequences of his own ne^^ligence, because some stranger dis-
covers it and omits to repair it. «• Purcell was not the servant of the
city, and owed it no duty to put the court-house in condition to re-
ceive coal safely. This duty the law imposed upon the city, and
it was not not excused from its performance by the "fact that third
persons had observed its non-performance and had omitted to repair
its neglect. {Bcnzing v. ^Sfr/ntcoy, loi ISTTY.' 547 ; Webster v. Hud.
K. R. R. Co., 38 id. 260; Barrett v. Third Ave. R. R. Co., 45 id. 628)
The familiar rule that a master is not liable to his servant for dam-
ages occasioned to him through the negligence or unskillfulness of
his co-servant has no application to the facts of this case, and cannot
be invoked to shield the defendant from the consequences of its
negligence. {Wright v. A'. Y. C. R. R. Co., 25 N. Y. 541.)

Judgment reversed .*

^ Only that part of the opinion which deals with the first point is

- See Ripley, C. J., in CahiUW Eastman, 18 Minn. 324 (1872), 0. Z72. "It
cannot lessen {he liability of thfe defendants for the result of thei'r Own acts,
that another, a mere volunteer for aught that appears, had undertaken to
prevent sijch result, but had failed, whether from carelessness or not. Such
a defence really comes to this : That though the defendants stood asid? and
let the water take its course, they are not liable because a stranger might
have stopped it if he had used the proper means. An analogous position
would be, that I am not responsible for the damage done by my cattle escap-
ing into my neighbor's close, because a stranger who tried to keep them in
might have done so if he had taken proper oains."

'Accord: Wiley v. R. R., 44 N. J. L. 247 (1883), the spread of fire to
plaintiff's premises would have been prevented had the intermediate owners