highway still does so at its peril as regards the safe condition of the way (d).

It seems permissible to entertain some doubt as to the historical foundation of this doctrine, and in the modern practice of the United States it has not found acceptance (e). In New York it has, after careful discussion, been expressly disallowed (f).

Fire-arms: Dixon v. Bell. Loaded fire-arms are regarded as highly dangerous things, and persons dealing with them are answerable for damage done by their explosion, even if they have used apparently sufficient precaution. A man sent his maiden servant to fetch a flint-lock gun which was kept loaded, with a message to the master of the house to take out the priming first. This was done, and the gun delivered to the girl; she loitered on her errand, and (thinking, presumably, that the gun would not go off) pointed it in sport at a child, and drew the trigger. The gun went off and the child was seriously wounded. The owner was held liable, although he had used care, perhaps as much care as would commonly be thought enough.

(d) Sadler v. South Staffordshire, &c. Tramways Co. (1889), 23 Q. B. Div. 17, 58 L. J. Q. B. 421 (car ran off line through a defect in the points: the line did not belong to the defendant company, who had running powers over it).

(e) It appears to be held everywhere that unless the original act is in itself unlawful, the gist of the action is negligence; see Cooley on Torts, 589-594.

(f) Losee v. Buchanan (1873), 51 N. Y.

476; the owner of a steam boiler was held not liable, independently of negligence, for an explosion which threw it into the plaintiff's buildings. For the previous authorities as to fire, uniformly holding that in order to succeed the plaintiff must prove negligence, see at pp. 487-8. Rylands v. Fletcher is disapproved as being in conflict with the current of American authority.

Fire-arms. In the case of Morgan v. Cox (22 Mo. 373), Dixon v. Bell, supra, is cited; and upon this subject the court said, that one handling a fire-arm is liable for injuries resulting from its accidental discharge, unless the injury was inevitable, and utterly without the fault of the alleged wrong-doer. See Chataigne v. Bergeron, 10 La. An. 699; Chiles v. Drake, 2 Metc. (Ky.) 146; Moody v. Ward, 13 Mass. 299; Castle v. Dunyee, 2 Keyes, 169; Rhodes v. Roberts, 1 Stew. 145; Cale v. Fisher, 11 Mass. 137.

"It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents. The gun ought to have been so left as to be out of all reach of doing harm" (g). This amounts to saying that in dealing with a dangerous instrument of this kind the only caution that will be held adequate in point of law is to abolish its dangerous character altogether. Observe that the intervening negligence of the servant (which could hardly by any ingenuity have been imputed to her master as being in the course of her employment) was no defence. Experience unhappily shows that if loaded fire-arms are left within the reach of children or fools, no consequence is more natural or probable than that some such person will discharge them to the injury of himself or others.

Explosives and other dangerous goods. On a like principle it is held that people sending goods of an explosive or dangerous nature to be carried are bound to give reasonable notice of their nature, and, if they do not, are liable for resulting damage. So it was held when nitric acid was sent to a carrier without warning, and the carrier's servant, handling it as he would handle a vessel of any harmless fluid, was injured by its escape (h). The same rule has been applied in British India to the case of an explosive mixture being sent for carriage by railway without warning of its character, and exploding in the railway

(g) Dixon v. Bell (1816), 5 M. & S. 198, and in Bigelow L. C. 568. It might have been said that sending an incompetent person to fetch a loaded gun was evidence of negligence (see the first count of the declaration); but that is not the

ground taken by the Court (Lord Ellenborough C. J. and Bayley J.).

(h) Farrant v. Barnes (1862), 11 C. B. N. S. 553, 31 L. J. C. P. 137. The duty seems to be antecedent, not incident, to the contract of carriage.

Explosives and other dangerous goods. Sustaining the text, vide The Nitro-Glycerine Case, 15 Wall. 524; Barney v. Burstenbinder, 7 Lans. 210; Sofield v. Sommers, 9 Ben. 526.

company's office, where it was being handled along with other goods (i); and it has been held in a similar case in Massachusetts that the consignor's liability is none the less because the danger of the transport, and the damage actually resulting, have been increased by another consignor independently sending other dangerous goods by the same conveyance (k).

Gas escapes. Gas (the ordinary illuminating coal-gas) is not of itself, perhaps, a dangerous thing, but with atmospheric air forms a highly dangerous explosive mixture, and also makes the mixed atmosphere incapable of supporting life (7). Persons undertaking to deal with it are therefore bound, at all events, to use all reasonable diligence to prevent an escape which may have such results. A gasfitter left an imperfectly connected tube in the place where

(i) Lyell v. Ganga Dai, I. L. R. 1 All. 60.

(k) Boston & Albany R. R. Co. v. Shanly (1871), 107 Mass. 568; (" dualin," a nitroglycerine compound, and exploders, had been ordered by one customer of two separate makers, and by them separately

consigned to the railway company without notice of their character: held on demurrer that both manufacturers were rightly sued in one action by the com. pany).

(1) See Smith v. Boston Gas Light Co., 129 Mass. 318.

Gas escapes. The American authorities agree with the statement of the text. In the case of Chisholm v. Atlanta Gas Light Co. (57 Ga. 29), the court said: "The principle applicable to the defendant in this, that in the conduct of its business as a gas producer and furnisher thereof to its customers, it is bound to use such ordinary skill and diligence as is proportioned to the delicacy, difficulty and nature of that particular business." See Powers v. Boston Gas-Light Co., 158 Mass. 257; 33 N. E. Rep. 523; Holly v. Boston Gas-Light Co., 8 Gray, 134, Lanigan v. New York Gas-Light Co., 71 N. Y. 29; Oil City Gas Co. v. Robinson, 99 Pa. St. 1; Bartlett v. Boston Gas-Light Co., 117 Mass. 534; 20 Am. & Eng. Corp. Cas. 380; Schmeer v. Gas-Light Co., 65 Hun, 378; 20 N. Y. S. Rep. 168; Lowell Gas-Light Co., 3 Allen, 410; Hutchinson v. Boston Gas-Light Co., 122 Mass. 219; Schermerhorn v. The Metropolitan GasLight Co., 5 Daly, 144; Louisville Gas Co. v. Gutenkuntz, 82 Ky. 482; Lannen v. The Albany Gas-Light Co., 44 N. Y. 459; 46 Barb. 264; Butcher v. Providence G. Co., 12 R. I. 149; Dillon v. Washington G. Co., 1 McArthur, 626; Koelsch v. Philadelphia Co., 152 Pa. St. 355; 25 At. Rep. 522; 31 W. N. C. 341.

he was working under a contract with the occupier; a third person, a servant of that occupier, entering the room with a light in fulfilment of his ordinary duties, was hurt by an explosion due to the escape of gas from the tube so left; the gas-fitter was held liable as for a "misfeasance independent of contract "(m).

Poisonous drugs: Thomas v. Winchester.

Poisons can

do as much mischief as loaded fire-arms or explosives, though the danger and the appropriate precautions are different.

A wholesale druggist in New York purported to sell extract of dandelion to a retail druggist. The thing delivered was in truth extract of belladonna, which by the negligence of the wholesale dealer's assistant had been wrongly labelled. By the retail druggist this extract was sold to a country practitioner, and by him to a customer, who took it as and for extract of dandelion, and thereby

(m) Parry v. Smith (1879), 4 C. P. D. 325, 48 L. J. C. P. 731 (Lopes J.). Negligence was found as a fact.

Poisonous drugs. In Davidson v. Nichols (11 Allen, 514), Thomas v. Winchester, supra, is limited, in its application, to deadly poisons dangerous to human life, and it is held that the sale of an article in itself harmless, and which becomes dangerous only by being used in combination with some other article, without any knowledge by the vendor that it is to be used in such combination, does not render him liable to an action by one who purchases the article from the original vendee, and who is injured by using it in dangerous combination with another article; although by mistake the article actually sold is different from that which is intended to be sold.

If an apothecary negligently sells a deadly poison as and for a harmless medicine, to A., who buys it to administer to B., a dose of it, as a medicine from which he dies in a few hours, a right of action in tort against the apothecary survives to B's. administrator. Norton v. Sewall, 106 Mass. 143; 8 Am. Rep. 298; Brunswig v. White, 70 Tex. 504; 8 S. W. Rep. 85; Davis v. Guiarnieri, 45 Ohio St. 470; 15 N. E. Rep. 350; Walton v. Booth, 34 La. An. 913. But see Ray v. Burbank, 61 Ga. 505; 54 Am. Rep. 103; Gould v. Slater Woolen Co., 147 Mass. 315; Wohlbohrt v. Beckert, 92 N. Y. 490; 12 Abb. N. Cas. 478; 44 Am. Rep. 406.

"The defendant The death or great

was made seriously ill. The Court of Appeals held the wholesale dealer liable to the consumer. was a dealer in poisonous drugs bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label." And the existence of a contract between the defendant and the immediate purchaser from him could make no difference, as its non-existence would have made none. "The plaintiff's injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord" (the country practitioner)" without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale" - or administration without sale" on the faith of the label" (n). This case has been thought in England to go too far; but it is hard to see in what respect it goes farther than Dixon v. Bell. So far as the cases are dissimilar, the damage would seem to be not more but less remote. If one sends belladonna into the world labelled as dandelion (the two extracts being otherwise distinguishable only by minute examination), it is a more than probable consequence that some one will take it as and for dandelion and be the worse for it: and this without any action on the part of others necessarily involving want of due care (o).

It can hardly be said that a wrongly labelled poison, whose true character is not discoverable by any ordinary examination such as a careful purchaser could or would make, is in itself less dangerous than a loaded event, indeed, shows the contrary.

gun. The

Difficulties felt in England: George v. Skivington. Nevertheless difficulties are felt in England about admitting

(n) Thomas v. Winchester (1852), 6 N. Y. 397, Bigelow L. C. 602.

(0) The jury found that there was not any negligence on the part of the inter

mediate dealers; the Court, however, were of opinion that this was immaterial.