O'Brien v. Am. Bridge Co. of N.J.

Decision Date08 April 1910
Citation110 Minn. 364,125 N.W. 1012
PartiesO'BRIEN v. AMERICAN BRIDGE CO. OF NEW JERSEY.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Ramsey County; Geo. L. Bunn, Judge.

Action by Patrick H. O'Brien against the American Bridge Company of New Jersey. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

The mere fact that the party sought to be charged has broken his contract with the other party thereto is not of itself sufficient to render him liable for consequential damages to a stranger to that contract. Winterbottom v. Wright, 10 M. & W. 109, distinguished.

As a general, not as a universal, rule ‘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 recognize 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 property of the other, a duty arises to use ordinary care and skill to avoid the danger.’ Heaven v. Pender, 11 Q. B. D. 503, followed and applied.

When the breach of a contract has resulted in proximate and substantial damages to a stranger thereto because of the negligence of one party to that agreement, such damages are recoverable if the agency, causing the harm complained of, be of a noxious or dangerous kind, and the party sought to be charged as a manufacturer or contractor had knowledge of its being in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care.

It is sufficient if the agency be ‘potentially dangerous.’ Its noxious or dangerous character refers not so much to its intrinsic quality as to the extremity and imminence of the peril which its ordinary use with ordinary care involves.

The effect of the original wrongful act may be traced in accordance with general principles of causation through the unconscious intermediate agents who may be parties to the contract.

Defendant was responsible for the erection of a bridge under contract. Five or six weeks after its acceptance it collapsed, while plaintiff and others were passing over it. Plaintiff was seriously injured. It is held that under the pleadings, proof, and charge of the trial court plaintiff is entitled to recover. Schubert v. Clark Co., 49 Minn. 331, 51 N. W. 1103,15 L. R. A. 818, 32 Am. St. Rep. 559, followed and applied.

While the action of deceit rests upon fraudulent, and not merely upon negligent, misrepresentations, the present action lay upon allegations of negligence, although actionable fraud was not shown. Haff & Michaels and Davis, Kellogg & Severance, for appellant.

E. H. McVey and Thomas P. McNamara, for respondent.

JAGGARD, J.

Defendant was responsible for the erection of a bridge under contract. The county itself constructed the approaches and connected them with the bridge. Five or six weeks after the acceptance of the bridge it collapsed, while plaintiff and others were crossing over it. One person was killed, and others, including plaintiff, were injured. In this an action to recover therefor the jury awarded plaintiff $11,000. From an order denying defendant's motion for a new trial, this appeal was taken. The law applicable to such a state of facts is familiar, and in its general outlines well settled.

1. In the English law, there are at least four distinct and different principles applicable to related states of fact which are established by as many separate lines of decisions, namely: (1) The principle established by the cases of which Winterbottom v. Wright, 10 M. & W. 109, may be taken as an example; (2) the principle of Nelson v. Company, [1877] 2 C. P. D. 311; (3) the principle of Indermaur v. Dames, [1866] L. R. 1 C. P. 274, [1867]2 C. P. 311; (4) the principle of Langridge v. Levy, [1837] 2 M. & W. 519, and of George v. Skivington, [1869] L. R. 5 Ex. 1. See Lord Atkinson in Cavalier v. Pope, H. of L. (E) 1906 Ap. C. 428, at 432, 433.

It is convenient and sufficient for present purposes, although it may not be strictly necessary, to regard the case at bar as involving the rules laid down in the first and fourth classes of cases. The principle of Winterbottom v. Wright has been frequently misconstrued, misstated, and misapplied. There the declaration demurred to set forth that the dangerous condition of the coach which was supplied by defendant to plaintiff's master, and by which plaintiff was hurt, was due to ‘certain latent defects.’ In consequence that ‘declaration was nothing more than an attempt to sue on that contract by a person who was a total stranger to it.’ C. & L. on Torts (Can. Ed.) 478. The facts of Longmeid v. Holliday, 6 Ex. 761, have been still more grossly distorted. In that case ‘the jury found bona fides and no negligence on the part of the vendor.’ Kelly, C. B., in George v. Skivington, [1869] L. R. 5 Ex. 1. ‘The decision itself cannot be regarded as any authority for the proposition stated in the headnote.’ C. & L. on Torts (Can. Ed.) 478. Mr. Pollock has pointed out that what Winterbottom v. Wright and Longmeid v. Holliday decided was, not that ‘facts which constitute a contract can have no other legal effect, * * * but something different and more rational, namely, that if A. breaks his contract with B. * * * that is not of itself sufficient to make A. liable to C., a stranger to the contract, for consequential damages.’ Pollock on Torts (8th Ed.) 546. And see Baumcall, etc., Co. v. Farness, L. R. 1893 A. C. 16.

In the fourth class of cases the underlying principle, of general, though not of universal, application, upon which the liability in Heaven v. Pender, 11 Q. B. D. 503, has been enforced, was thus formulated by Brett, M. R.: ‘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 recognize 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 property of the other, a duty arises to use ordinary care and skill to avoid such danger. * * *’ The authorities are regarded by Clerk & Lindsell (whose discussion is most thoughtful and exhaustive) as establishing these propositions, namely: A duty with respect to instrumentalities delivered under contract may exist towards others than the contracting parties. That duty extends to all persons likely to be injured by defendant's want of care, providing it is reasonable for such person to rely on care having been taken. To entitle the injured party to complain he must have used the dangerous thing in a manner intended and he must be one of the class of persons by whom the defendant contemplated the thing being used. C. & L. on Torts (Can. Ed.) 470. And see general classification of cases on page 468.

Mr. Pollock's view of the English cases is more consistent with an accepted American theory (which suffices to determine this controversy namely: Two features are conspicuously necessary to the creation of this duty to strangers to a contract: (1) That the thing be of a noxious or dangerous kind; (2) that the builder, manufacturer, or contractor had actual knowledge of its being in such a state of danger as would amount to concealed danger to persons using it in ordinary manner and with ordinary care. Pollock on Torts (8th Ed.) 515. It is convenient to later consider the element of danger. Knowledge of imperfect condition is essential. In Earl v.Lubock, [1905] 1 K. B. 253-258, plaintiff, a driver in the employment of a firm for whom defendant had agreed to keep in repair a number of vans, was unable to recover damages based on the negligence of the workmen in failing to properly inspect and repair a defective van, because he failed to ‘adduce and use evidence to show that to the knowledge of the defendant the van was in such condition as to cause danger not necessarily incident to its use.’ And see note to 1 Am. & Eng. Ann. Cas. 755. It would serve no useful purpose to detail or discuss the familiar cases on the subject.

Lord Atkinson, in Cavalier v. Pope, supra, at page 43, regards the group here under consideration as including cases of ‘fraud, misrepresentation, warranty, or the handing over of a thing known to be dangerous without warning.’ Some English authorities recognize a very wide liability. For example, in Barry v. Smith, [1879] L. R. 4 C. P. D. 327, defendant, employed by plaintiff's master to repair a gas meter upon his premises, was held responsible to plaintiff in damages consequent upon an explosion of gas, which had escaped by reason of defendant's negligence, when plaintiff in the performance of his ordinary duty went near with a light. Lopes, J., said, at page 327: ‘I think the plaintiff's right of action is founded on a duty which I believe attaches in every case where a person is using or is dealing with a highly dangerous thing, which, unless managed with the greatest care, is calculated to cause injury to bystanders. To support such a right of action, there need be no privity between the party injured and him by whose breach of duty the injury was caused, nor any fraud, misrepresentation, or concealment; nor need what is done by the defendant amount to a public nuisance. It is a misfeasance independent of contract.’ And see Elliott v. Hall, [1885] 15 Q. B. D. 315.

This is not equivalent to requiring that the agency must be ‘noxious or dangerous in itself’ (see, e. g., Caledonia Ry. Co. v. Mulholland, H. of L. [Sc.] 1898 A. C. 216), or per se lethal. In Heaven v. Pender, 11 Q. B. D. 503-517, Bowen, C. J., said: ‘Any one who leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without due warning supplies 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...

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