Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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enter. It is not a statement of what causes the relation which
raises the duty. What causes the relation is the permission to enter



HEAVEN' V. PENDER 4/5

and the entry. But it is not a strictly accurate statement of the duty.
To lay a trap means in ordinary language to do something with an
intention. Vet it is clear that the duty extends to a danger the
result of negligence without intention. And with regard to both
these phrases, though each covers the circumstances to which it is
particularly applied, yet it does not cover the other set of circum-
stances from which an exactly similar legal liability is inferred. It
follows, as it seems to me, that there must be some larger proposi-
tion which involves and covers both sets of circumstances. The
logic of inductive reasoning requires that where two major proposi-
tions lead to exactly similar minor premisses there must be a more
remote and larger premiss which embraces both of the major prop-
ositions. That, in the present consideration, is, as it seems to me, the
same proposition whicli will cover the similar legal liability inferred
in the cases of collision and carriage. The proposition which these
recognised cases suggest, and which is, therefore, to be deduced
from them, is that whenever one person is by circumstances placed
in such a position with regard to another that every one of ordinary
sense who did think would at once recognise that if he did not use
ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or prop-
erty of the other, a duty arises to use ordinary care and skill to
avoid such danger. Without displacing the other propositions to
which allusion has been made as applicable to the particular cir-
cumstances in respect of which they have been enunciated, this
proposition includes, I think, all the recognised cases of liability. It
is the only proposition which covers them all. It may, therefore,
safely be affirmed to be a true proposition, unless some obvious case
can be stated in which the liability must be admitted to exist, and
which yet is not within this proposition. There is no such case.
Let us apply this proposition to the case of one person supplying
goods or machinery, or instruments or utensils, or the like, for the
purpose of their being used by another person, but with whom there
is no contract as to the supply. The proposition will stand thus :
whenever one person supplies goods, or machinery, or the like, for
the purpose of their being used by another person under such cir-
cumstances that every one of ordinary sense would, if he thought,
recognise at once that unless he used ordinary care and skill with
regard to the condition of the thing supplied or the mode of sup-
plying it, there will be danger of injury to the person or property
of him for whose use the thing is supplied, and who is to use it, a
duty arises to use ordinary care and skill as to the condition or
manner of supplying such thing. And for a neglect of such ordinary
care or skill whereby injury happens a legal liability arises to be
enforced by an action for negligence. This includes the case of
goods, &c.. supplied to be used immediately by a particular person
or persons or one of a class of persons, where it would be obvious
to the person supplying, if he thought, that the goods would in all
probability be used at once by such persons before a reasonable
opportunity for discovering any defect which might exist, and
where the thing supplied would be of such a nature that a neglect of
ordinary care or skill as to its condition or the manner of supplying



4/6 HEAVEX v. PENDER

it would probably cause danger to the person or property of the
person for whose use it was supplied, and who was about to use it.
It would exclude a case in which the goods are supplied under
circumstances in which it would be a chance by whom they would
6e used or whether they would be used or not, or whether they
would be used before there would probably be means of observing
any defect, or where the goods would be of such a nature that a want
of care or skill as to their condition or the manner of supplying
them would not probably produce danger of injury to person or
property. The cases of vendor and purchaser and lender and hirer
under contract need not be considered, as the liability arises under
the contract, and not merely as a duty imposed by law, though it
may not be useless to observe that it seems difficult to import the
implied obligation into the contract except in cases in which if there
were no contract between the parties the law would according to the
rule above stated imply the duty.

Examining the rule which has been above enunciated with the
cases which have been decided with regard to goods supplied for the
purpose of being used by persons with whom there is no contract,
the first case to be considered is inevitably Langridge v. Levy (2 M,
& W. 519). It is not an easy case to act upon. It is not, it cannot
be accurately reported ; the declaration is set out ; the evidence is
assumed to be reported ; the questions left to the jury are stated.
And then it is said that a motion was made to enter a nonsuit in
pursuance of leave reserved on particular grounds. Those grounds
do not raise the question of fraud at all, but only the question of
remoteness. And although the question of fraud seems in a sense
to have been left to the jury, yet no question was, according to the
report, left to them as to whether the plaintiff acted on the faith
of the fraudulent misrepresentation which is, nevertheless, a neces-
sary question in a case of fraudulent misrepresentation. The report
of the argument makes the object of the argument depend entirely
upon an assumed motion to arrest the judgment, which raises always
a discussion depending entirely on the form of the declaration, and
the effect on it of a verdict, in respect of which it is assumed that
all questions were left to the jury. If this was the point taken the
report of the evidence and of the questions left to the jury is idle!
The case was decided on the ground of the fraudulent misrepresenta-
tion as stated in the declaration. It is inferred that the defendant
intended the representation to be communicated to the son. Why
he should have such an intention in fact, it seems difficult to under-
stand. His immediate object must have been to induce the father to
buy and pay for the gun. It must have been wholly indifferent to
him whether after the sale and payment the gun would be used or
not by the son. I cannot hesitate to say that, in my opinion, the
case is a wholly unsatisfactory case to act on as an authority. But
taking the case to be decided on the ground of a fraudulent mis-
represenatation made hypothetically to the son, and acted upon by
him, such a decision upon such a ground, in no way negatives the
proposition that the action might have been supported on the ground
of negligence without fraud. It seems to be a case which is within
the proposition enunciated in this judgment, and in which the action



HEAVEN Z'. PENDER 477

might have been supported without proof of actual fraud. And
this seems tn Ijc the meaning of Cleasby, B., in the observations he
made on Laiigridgc v. Levy (supra) in the case of George v. Skiving-
ton, Law Rep. 5 Ex. 1,5. In that case the proposition laid down in
this judgment is clearly adopted. The ground of the decision is that
the article was, to the knowledge of the defendant, supplied for the
use of the wife and for her immediate use. And certainly, if he or
anyone in his position had thought at all, it must have been obvious
that a want of ordinary care or skill in preparing the prescription
sold, would endanger the personal safety of the wife.

In Corby v. Hill, 4 C. B. (X. S.) 556, it is stated by the Lord
Chief Justice that an allurement was held out to the plaintiff. And
Willes, J. stated that the defendant had no right to set a trap for the
plaintiff. But in the form of declaration suggested by Willes, J., on
p. 567, there is no mention of allurement, or invitation, or trap. The
facts suggested in that form are, "that the plaintiff had license to
go on the road, that he was in consequence accustomed and likely
to pass along it, that the defendant knew of that custom and prob-
ability, that the defendant negligently placed slates in such a manner
as to be likely to prove dangerous to persons driving along the road,
that the plaintiff* drove along the road, being by reason of the licence
lawfully on the road, and that he was injured by the obstruction."
It is impossible to state a case more exactly within the proposition
laid down in this judgment. In Sniith v. London and St. Katharine
Docks Co., Law Rep. 3 C. P. 326. the phrase is again used of invita-
tion to the plaintiff' by the defendants. Again, let it be observed
that there is no objection to the phrase as applied to the case. But
the real value of the phrase may not improperly be said to be. that
invitation imports knowledge by the defendant of the probable use
by the plaintiff' of the article supplied, and therefore carries with it
the relation between the parties which establishes the duty. In
Indermaur v. Dames, Law Rep. i C. P. 274, reliance is again placed
upon a supposed invitation of the plaintiff by the defendant. But
again, it is hardly possible to state facts which bring a case more
completely within the definition of the present judgment. In ]\'in-
tcrbottoin v. JJ'riglit, 10 INI. & \V. 109, it was held that there was no
duty cast upon the defendant with regard to the plaintiff". The case
was decided on what was equivalent to a general demurrer to the
declaration. And the declaration does not seem to shew that the
defendant, if he had thought about it, must have known, or ought to
have known, that the coach would be necessarily or probably driven
by the plaintiff', or by any class of which he could be said to be one,
or that it would be so driven within any time which would make it
probable that the defect would not be observed. The declaration
relied too much on contracts entered into with other persons than
the plantiff*. The facts alleged did not bring the case within the
proposition herein enunciated. It was an attempt to establish a duty
towards all the world. The case was decided on the ground of
remoteness. And it is as to too great a remoteness that the observation
of Lord Abinger is pointed, when he says that the doctrine of Lang-
ridge V. Levy (supra) is not to be extended. In Francis v. Cockrcll.
Law Rep. 5 O. B. 184, at p. 501, the decision is put by some of the



478 HEAVEN V. PENDER

judges on an implied contract between the plaintiff and the defend-
ant. But Cleasby, B. (p. 515), puts it upon the duty raised by the
knowledge of the defendant that the stand was to be used im-
mediately by persons of wdiom the plaintiff was one. In other words
he acts upon the rule above laid down. In Collis v. Seidell, Law
Rep. 3 C. P. 495, it was held that the declaration disclosed no duty.
And obviously, the declaration was too uncertain. There is nothing
to shew that the defendant knew more of the probability of the
plaintiff' rather than any other of the public being near the chan-
delier. There is nothing to shew that the plaintiff was more likely to
be in the public-house than any other member of the public. There
is nothing to shew how soon after the hanging of the chandelier
anyone might be expected or permitted to enter the room in which
it was. The facts stated do not bring it within the rule. There is
an American case: Thomas and Wife, 6 N. Y. 397, cited in Mr.
Horace Smith's Treatise on the Law of Negligence, p. 88, note (t),
which goes a very long way. I doubt whether it does not go too
far. In Longmeid v. HoUiday, 6 Ex. 761, a lamp was sold to the
plaintiff to be used by the wife. The jury were not satisfied that the
defendant knew of the defect in the lamp. If he did, there was
fraud; if he did not, there seems to have been no evidence of neg-
ligence. If there was fraud, the case was more than within the rule.
If there was no fraud, the case was not brought by other circum-
stances within the rule. In Gantret v. Egerton, Law Rep. 2 C. P.
371, at p. 374, the declaration was held by Willes, J., to be bad on
demurrer, because it did not shew that the defendant had any reason
to suppose that persons going to the docks would not have ample
means of seeing the holes and cuttings relied on. He does not say
there must be fraud in order to support the action. He says there
iiiust be something like fraud. He says: "Every man is bound not
wilfully to deceive others." And then in the alternative, he says:
"or to do any act zvhich may place them in danger." There seems to
be no case in conflict with the rule above deduced from well admitted
cases. I am, therefore, of opinion that it is a good, safe, and just
rule.

I cannot conceive that if the facts were proved which would
make out the proposition I have enunciated, the law can be that
there would be no liability. Unless that be true, the proposition
must be true. If it be the rule the present case is clearly within it.
This case is also, I agree, within that which seems to me to be a
minor proposition — namely, the proposition which has been often
acted upon, that there was in a sense, an invitation of the plaintiff
by the defendant, to use the stage. The appeal must, in my opinion,
be allowed, and judgment must be entered for the plaintiff.

Cotton, L.J. Bowen, L.J., concurs in the judgment I am about
to read.

In this case the defendant was the owner of a dock for the
repair of ships, and provided for use in the dock the stages neces-
sary to enable the outside of the ship to be painted while in the dock,
and the stages which were to be used only in the dock were ap-
pliances provided by the dock owner as appurtenant to the dock and
its use. After the stage was handed over to the shipowner it no



HEAVEN V. PENDER 479

longer remained under the control of the dock owner. But when
ships were received into the dock for repair and provided with
stages for the work on the ships which was to be executed there,
all those who came to the vessels for the purpose of painting and
otherwise repairing them were there for business in which the
dock owner was interested, and they, in my opinion, must be con-
sidered as invited by the dock owner to use the dock and all ap-
pliances provided by the dock owner as incident t(j the use of the
dock. To these persons, in my opinion, the dock owner was under
an obligation to take reasonable care that at the time the appliances
provided for immediate use in the dock were provided by him they
were in a fit state to be used — tiiat is, in such a state as not to ex-
pose those who might use them for the repair of the ship to any
danger or risk not necessarily incident to the service in which they
are emi)loyed. That this obligation exists as regards articles of
which the' control remains with the dock owner was decided in
Indcrmaur \. Dames {supra), and in Smith v. London and St. Kath-
arine Docks Co. (supra), the same principle was acted on. I think
that the same duty must exist as to things supplied by the dock owner
for immediate use in the dock, of which the control is not retained
by the dock owner, to the extent of using reasonable care as to the
state of the articles when delivered by him to the ship under repair
for immediate use in relation to the repairs. For any neglect of
those having control of the ship and the appliances he would not be
liable, and to establish his liability it must be proved that the defect
which caused the accident existed at the time when the article was
supplied bv the dock owner.

Black'more v. Bristol and Exeter Ry. Co., 8 E. & B. 1035, may
be relied on as at variance with the opinion thus expressed by me.
but I think that the objection is not well founded. If the plaintiff
is to be considered as a volunteer there would be no implied request
or invitation to him by the defendant to use the dock and the ap-
pliances provided. But he was there for the purpose of w'ork, for
the due execution of which the defendant recived the ship into his
dock, and the defendant received payment as remuneration for
allowing the work to be done in his dock, and for providing the
necessarv appliances for enabling it to be done. The plaintiff' was
therefore engaged in work in the performance of which the defend-
ant was interested, and he cannot be looked upon in the light of a
volunteer. Whether the Court was right in Bhickm ore's Case
(supra), in treating the plaintiff as a volunteer may be a question.
But as the ground of the decision is that he was so. that circumstance
prevents the case being an authority inconsistent in principle with
the conclusion at which I have arrived.

This decides this appeal in favour of the plaintiff', and I am un-
willing to concur with tlic Master of the Rolls in laying down un-
necessarilv the larger principle which he entertains, inasmuch as
there arc many cases in which the principle was impliedly negatived.
Take for' instance the case of Langridge v. Levy (supra), to
which the principle if it existed would have applied. But the judges
who decided that case based their judgment on the fraudulent repre-
sentation made to the father of the plaintiff by the defendant. In



480 HEAVEN V. PENDER

Other cases where the decision has been referred to judges have
treated fraud as the ground of the decision, as was done by Cole-
ridge, J., in Blackmore v. Bristol and Exeter Ry. Co, (supra) ; and
in Coflis V. Sclden (supra), Willes, J., says that the judgment in
Laugridgc v. Lcz'y (supra), was based on the fraud of the defendant.
This impHedly negatives the existence of the larger general principle
which is relied on, and the decisions in Collis v. Selden (supra), and in
Longmcid v. HoUiday (supra), (in each of which the plaintiff failed),
are in my opinion at variance with the principle contended for. The
case of George v. Skivington (supra), and especially what is said
by Cleasby, B., in giving judgment in that case seem to support the
existence of the general principle. But it is not in terms laid down
that any such principle exists, and that case was decided by Cleasby,
B., on the ground that the negligence of the defendant which was
his own personal negligence was equivalent, for the purposes of
that action, to fraud on which (as he said) the decision in Lang-
ridge v. Lezy (supra) was based.

In declining to concur in laying down the principle enunciated
by the Master of the Rolls, I in no way intimate any doubt as to the
principle that anyone who leaves a dangerous instrument, as a gun,
in such a way as to cause danger, or who without due warning sup-
plies to others for use an instrument or thing which to his knowledge,
from its construction or otherwise, is in such a condition as to cause
danger, not necessarily incident to the use of such an instrument or
thing, is liable for injury caused to others by reason of his negligent
act.

For the reasons stated I agree that the plaintiff is entitled to
judgment, though I do not entirely concur with the reasoning of the
Master of the Rolls.

Judgment reversed.^



'^ Accord: Mowbray v. Merryweather, L. R. 1895, 2 Q. B. 640; Marney
V. Scott, L. R. 1899, I Q. B. 986, defendants chartered a vessel which,
within two hours after receiving possession, the loading began — De-
fendant held liable to servant of stevedore for failure to inspect ship be-
fore turning it over for loading; Johnston v. Ott, 155 Pa. 17 (1893), trench
dug by contractor, in which a subcontractor was employed to do brick work ;
Coughtry v. Globe Co., 56 N. Y. 124 (1874), scaffolding built by an owner
upon his own premises for the use of the workmen of a contractor em-
ployed by him to put up a cornice in his building ; Hoffner v. Prettyman,
6 Pa. S. C. 20 (1897), similar facts, but the owner is liable only for injuries
to workmen for whose use the scaffolding is erected, not to others, who
without invitation or permission use it though themselves doing work for
him, Brady v. Prettyman, 193 Pa. 628 (1899), cf. Blakemore v. Ry., 8 E. &
B. 1035 ^1858).

In Midchey v. Methodist Society, 125 Mass. 487 (1878), a church was
held liable to an employee of a master painter injured by the fall of a
scaffold erected for the use of the painters by a builder employed by the
church to erect it. In Stevens v. United Gas Co., 73 N. H. 159 (1905) it
was held that, though the contractor, the plaintiff's master erected the scaf-
fold around defendant's building, the latter was liable if he allowed live
electric wires to be within touch of those working on the scaffold and that
in such case it was immaterial that the danger was known to the con-
tractor if latent to his workmen, p. 169; and see Waters Pierce Co. v.
Deslems, 29 S. C. R. 271 (U. S., 1909), p. 276, semble; Clement v. Crosby




ELLIOTT V. HALL 48 1



ELLIOTT V. HALL.
In the Queen's Bench Division, 1885. L. R. 15 Q. B. D., 315

The action was in respect of personal injuries alleged to have
been occasioned to the plaintiff through the defendant's negligence.

At the trial before Pollock, B., at the last Leicester Summer
Assizes, the facts appeared to be as follows : —

The plaintiff' was a servant employed by the Leicester Coal Con-
sumers' Company in unloading coal from trucks at their sidings at
the West Bridge Station, at Leicester. The defendant was a colliery
proprietor who supplied coal to the Leicester Coal Consumers' Com-
pany under contracts with them. The defendant had a line from the
colliery communicating with the Midland Railway at Bagworth sta-
tion, near Leicester. The defendant's servants delivered to the Mid-
land Railway Company at Bagworth a truck full of coals consigned
to West Bridge Station, Leicester, to the order of the Leicester Coal
Consumers' Company. The truck remained on the railway company's
sidings at Bagworth for about six weeks : it was then forwarded to
West Bridge Station, and placed there on sidings belonging to the
Leicester Coal Consumers' Company. Two days afterwards the
servants of that company began to unload the truck. The truck
had a trap-door in the bottom used when required for the purpose of
unloading into a vessel. This door, when shut, was supported by a
bar which was kept in its position by means of a fastening called a
cotter. The efficiency of this fastening depended upon the existence
of a catch or small projection at the end of an iron pin, which pre-
vented the pin, when passed through a slit, from repassing, except
when held in a certain position. The plaintiff got into the truck to
unload it, and was engaged in so doing when the door fell down and
he fell through the opening on to the rails, and thereby sustained the
injuries in respect of which the action was brought. L^pon inspection
of the truck after the accident, it appeared that the catch on the
pin above-mentioned was worn away, and probably had been so
for some months. The truck in question was rented by the defend-
ant for the purposes of the colliery from the Midland Waggon
Company. It was stated by the defendant's manager that, by the
contract between the Midland Waggon Company and the defendant,
the waggon company were to repair the waggons let out by them,



Co., 148 ^lich 293 (1907), and Lechman v. Hooper, 52 N. J. L. 253 (1890) ;
but see Galvin v. K'ezi' York, ante., p. 296 and cases cited in note 2 thereto.

Where the defendant furnishes to a contractor, whom he employs to
do work for him, appliances or machines for the latter's use and agrees to
keep them in repair, he is liable to a servant of such contractor, who is
injured by reason of a failure to repair the appliances or machine and
this though when turned over to the contractor, the machine was in good
order. Toomey v. Donovan, 158 Mass. 232 (1893") : King v. R. R,, 66 N. Y.
t8i (1876') ; cf. Fish v. KirUn Gray Co., t8 S. Dak. 122 (1904') : so in Gmss
V. Carnegie Co., 45 Pittsburgh L. J., 318 (1896), a steel company employ-
ing a subcontractor to construct a bridge for it and contracting to furnish
him with iron, as material therefor, made by a certain process, furnished
iron which not being so manufactured, was too weak to stand the strain
incident to putting the bridge together — it was held that it was liable
to a servant of the subcontractor injured thereby.



^82 ELLIOTT V. HALL

and that they kept repairing stations and inspectors of waggons at
Jjagworth and Leicester for that purpose, but he admitted that it was