this application of a principle which in other directions is both more widely and more strictly applied in this country than in the United States (p). In 1869 the Court of Exchequer made a rather hesitating step towards it, putting their judgment partly on the ground that the dispenser of the mischievous drug (in this case a hair wash) knew that it was intended to be used by the very person whom it in fact injured (9). The cause of action seems to have been treated as in the nature of deceit, and Thomas v. Winchester does not seem to have been known either to counsel or to the Court. In the line actually taken one sees the tendency to assume that the ground of liability, if any, must be either warranty or fraud. But this is erroneous, as the judgment in Thomas v. Winchester carefully and clearly shows. Whether that case was well decided appears to be a perfectly open question for our courts (r). In the present writer's opinion it is good law, and ought to be followed. Certainly it comes within the language of Parke B. in Longmeid v. Holliday (8), which does not deny legal responsibility" when any one delivers to another without notice an instrument in its nature dangerous under particular circumstances, as a loaded gun which he himself has loaded, and that other person to whom it is delivered is injured thereby; or if be places it in a situation easily accessible to a third person who sustains damage from it." In that case the defendant had sold a dangerous thing, namely an ill-made lamp, which exploded in use, but it was found as a fact that he sold it in good faith, and it was not

(p) See per Brett M. R., Heaven v. Pender (1883), 11 Q. B. Div. at p. 514, in a judgment which itself endeavours to lay down a much wider rule.

(7) George v. Skivington (1869), L. R. 5 Ex. 1, 38 L. J. Ex. 8.

(r) Dixon v. Bell (1816), 5 M. & S. 198, Bigelow L. C. 568 (supra, p. 446), has never been disapproved that we know of, but has not been so actively followed that the Court of Appeal need be pre

cluded from free discussion of the principle involved. In Langridge v. Levy (1837), 2 M. & W. at p. 530, the Court was somewhat astute to avoid discussing that principle, and declined to commit itself. Dixon v. Bell is cited by Parke B. as a strong case, and apparently with hesitating acceptance, in Longmeid v. Holliday (1851), 6 Ex. 761, 20 L. J. Ex. 430.

(8) 20 L. J. Ex. at p. 433.

found that there was any negligence on his part. As lamps are not in their nature explosive, it was quite rightly held that on these facts the defendant could be liable only ex contractu, and therefore not to any person who could not sue on his contract or on a warranty therein expressed or implied.

Duties of occupiers of buildings, &c., in respect of safe repair. We now come to the duties imposed by law on the occupiers of buildings, or persons having the control of other structures intended for human use and occupation, in respect of the safe condition of the building or structure. Under this head there are distinctions to be noted both as to the extent of the duty, and as to the persons to whom it is owed.

Extent of the duty. The duty is founded not on ownership, but on possession, in other words, on the structure being maintained under the control and for the purposes of the person held answerable. It goes beyond the common doctrine of responsibility for servants, for the occupier cannot discharge himself by employing an inde pendent contractor for the maintenance and repair of the structure, however careful he may be in the choice of that

Extent of the duty. Concurring with the statement of the text, the American cases hold that a lessor occupying a building is prima facie liable to third persons for damages accruing to them from defects therein. O'Connor v. Andrews, 81 Tex. 28; 16 S. W. Rep. 628; Readman v. Conway, 126 Mass. 374; Mellen v. Morrill, 126 Mass. 545; Khron v. Brock, 144 Mass. 516; Sinton v. Butler, 40 Ohio St. 158; Kalis v. Shattuck, 69 Cal. 593; 58 Am. Rep. 568; Cleveland Co-operative Stove Co. v. Wheeler, 14 Ill. App. 112; Baird v. Shipman, 13 Ill. 16; 23 N. E. Rep. 384; Odell v. Solomon, 99 N. W. 637; Moore v. Ocean Steam Nav. Co., 24 Fed. Rep. 237; Onderdonk v. Smith, 21 Fed. Rep. 588; Pennsylvania R. Co. v. Atha, 22 Fed. Rep. 921.

But there are cases where the owner and not the occupant of the property may be liable. See Marshall v. Heard, 59 Tex. 267, citing Staple v. Spring, 10 Mass. 72; Durant v. Palmer, 29 N. J. L. 544; Irvine v. Wood, 51 N. Y. 228.

contractor. Thus the duty is described as being impersonal rather than personal. Personal diligence on the part of the occupier and his servants is immaterial. The structure has to be in a reasonably safe condition, so far as the exercise of reasonable care and skill can make it so (t). To that extent there is a limited duty of insurance, as one may call it, though not a strict duty of insurance such as exists in the classes of cases governed by Rylands v. Fletcher.

Modern date of the settled rule: Indermaur v. Dames. The separation of this rule from the ordinary law of negligence, which is inadequate to account for it, has been the work of quite recent times. As lately as 1864 (u) the Lord Chief Baron Pigot (of Ireland), in a very careful judgment, confessed the difficulty of discovering any general rule at all. Two years later a judgment of the Court of Common Pleas, delivered by Willes J., and confirmed by the Exchequer Chamber, gave us an exposition which has since been regarded on both sides of the Atlantic as a leading authority (x). The plaintiff was a journeyman gas-fitter, employed to examine and test some new burners which had been supplied by his employer for use in the defendant's sugar-refinery. While on an upper floor of the building, he fell through an unfenced shaft which was used in working hours for raising and lowering sugar. It was found as a fact that there was no want of reasonable care on the plaintiff's part, which amounts to saying that even to a careful person not already acquainted with the building the danger was an unexpected and concealed one. The Court held that on the admitted facts

(t) Per Montague Smith J. in Ex. Ch., Francis v. Cockrell (1870), Ex. Ch. L. R. 5 Q. B. 501, 513, 39 L. J. Q. B. 291. Other cases well showing this point are Pickard v. Smith, 10 C. B. N. S. 470; John v. Bacon (1870), L. R. 5 C. P. 437, 39 L. J. C. P. 365. (u) Sullivan v. Waters, 14 Ir. C. L. R.

460. See, however, Quarman v. Burnett (1840), 6 M. & W. at p. 510, where there is a suggestion of the modern rule.

(x) Indermaur v. Dames (1866), L. R. 1 C. P. 274, 35 L. J. C. P. 184, 2 C. P. 311, 36 L. J. C. P. 181, constantly cited in later cases, and reprinted in Bigelow L. C.

the plaintiff was in the building as "a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest, and not upon bare permission." They therefore had to deal with the general question of law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation express or implied. The common case is that of a customer in a shop but it is obvious that this is only one of a class.

"The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied.

"And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined. by a jury as a matter of fact" (y).

The Court goes on to admit that "there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place would reasonably be, having regard to the contrivances necessarily used in carrying on the business." On the facts they held that "there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned; that there was by reason of the shaft unusual danger, known to the defendant; and that

(y) L. R. 1 C. P. at p. 288.

the plaintiff sustained damage by reason of that danger, and of the neglect of the defendant and his servants to use reasonably sufficient means to avert or warn him of it." The judgment in the Exchequer Chamber (z) is little more than a simple affirmation of this.

Persons entitled to safety. It is hardly needful to add that a customer, or other person entitled to the like measure of care, is protected not only while he is actually doing his business, but while he is entering and leaving (a). And the amount of care required is so carefully indicated by Willes J. that little remains to be said on that score. The recent cases are important chiefly as showing in respect of

(2) L. R. 2 C. P. 311.

(a) Chapman v. Rothwell (1858), 1 E. B. & E. 168, 27 L. J. Q. B. 315, treated as a

very plain case, where a trap-door was left open in the floor of a passage leading to the defendant's office.

Persons entitled to safety. A concise statement of the law of this subject is that of Mr. Justice Gray in delivering the opinion of the court in Carleton v. Franconia Iron Co. (99 Mass. 216), as follows:

"The owner or occupier of land is liable in damages to those coming to it, using due care at his invitation or inducement, express or implied, on any business to be transacted or permitted by him, for an injury occasioned by the unsafe condition of the land or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist, and has given them no notice of it." See Currier v. Boston Music Hall, 135 Mass. 414; Pastene v. Adams, 49 Cal. 87; Totten v. Phipps, 52 N. Y. 354; City of Anderson v. East, 117 Ind. 126; 19 N. E. Rep. 726; Convers v. Walker, 30 Hun, 596; Camp v. Wood, 76 N. Y. 92; Henkel v. Murr, 31 Hun, 28; Edwards v. New York etc. R. Co., 25 Id. 634; Lamparter v. Wallbaum, 45 Ill. 444; Welch v. McAllister, 15 Mo. App. 492; Donnelly v. Hufschmidt, 79 Cal. 74; Evansville etc. R. Co. v. Griffin, 100 Ind. 221; 50 Am. Rep. 783; Powers v. Harlow, 53 Mich. 507; 51 Am. Rep. 157; Texas etc. R. Co. v. Best, 66 Tex. 116; Hamilton v. Texas etc. R. Co., 64 Tex. 251; 53 Am. Rep. 756; 21 Am. & Eng. R. Cas. 336; McKone v. Michigan, etc. R. Co., 51 Mich. 601; 47 Am. Rep. 596; 13 Am. & Eng. R. Cas. 29; Conradt v. Clauve, 93 Ind. 476; 47 Am. Rep. 388; Davis v. Central Congregational Soc., 129 Mass. 367; 37 Am. Rep. 368; Campbell v. Portland Sugar Co., 62 Me. 552; 16 Am. Rep. 503; Harris v. Perry, 89 N. Y. 308, reversing s. c. 23 Hun (N. Y.), 244; Benson v. Saurez, 19 Abb. Pr. 61; 43 Barb. 408; Davenport v. Buckman, 10 Bosw. 20; 16 Abb. Pr. 341; Anderson v. Dickie, 26 How.