O'Brien v. American Bridge Co.
| Citation | 110 Minn. 364 |
| Decision Date | 08 April 1910 |
| Docket Number | Nos. 16,389 - (209).,s. 16,389 - (209). |
| Court | Supreme Court of Minnesota (US) |
| Parties | PATRICK H. O'BRIEN v. AMERICAN BRIDGE COMPANY OF NEW JERSEY.<SMALL><SUP>1</SUP></SMALL> |
The complaint, as amended, alleged that the bridge was upon a certain public highway and in erecting it defendant negligently used unfit and insufficient material therefor, and negligently put the same together in a careless, negligent and improper manner, so as to render the structure liable to fall and unsafe for the passage of the public or individuals over it. The answer denied these allegations and set out at length the statute of limitations of the territory of Oklahoma. The reply set up the terms of section 4219, Statutes 1903, which provides that "the period limited for the commencement of the action" shall not run while defendant is absent from the territory, and alleged that defendant never had been in the territory of Oklahoma since March 17, 1901.
The case was tried before Bunn, J., and a jury which returned a verdict in favor of plaintiff for $11,000. From an order denying defendant's motion to set aside the verdict and for a new trial, defendant appealed. Affirmed.
Haff & Michaels and Davis, Kellogg & Severance, for appellant.
E. H. McVey and Thomas P. McNamara, for respondent.
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. Liverpool, [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 Exch. 1. See Lord Atkinson in Cavalier v. Pope, [1906] A. 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." Clerk & Lindsell, 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, supra. "The decision itself cannot be regarded as any authority for the proposition stated in the headnote." Clerk & Lindsell, 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 cannot have any other legal effect, * * * [but] something different and much 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, Torts (8th Ed.) 546. And see Baumwoll v. Furness, 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. Clerk & Lindsell, 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, Torts (8th Ed.) 515. It is convenient to later consider the element of danger. Knowledge of imperfect condition is essential. In Earl v. Lubbock, [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 evidence to shew that to the knowledge of the defendant the van was in such a condition as to cause danger not necessarily incident to its use." And see note to 1 Am. & Eng. An. 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 433, 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 Parry v. Smith, [1879] L. R. 4 C. P. D. 325, 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: 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., Caledonian 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 necessarily incident to the use of such an instrument or thing, is liable for injury caused to others by reason of his negligent act." In Clarke v. Army, [1903] 1 K. B. 155, a vendor of tins of chlorinated lime knew it was likely to cause damage to a person opening them unless special care was taken. The danger was not such as presumptively would have been known to or appreciable by a purchaser unless warned of it. It was held that independent of any warranty there was cast upon the vendor the duty to warn the purchaser of the danger. It is sufficient, it was there said, to create the duty that the article be "potentially dangerous."
Few things, like substances capable of spontaneous explosion or combustion, as wet hay, nitro-gylcerine, and flour dust, are intrinsically dangerous. Most perils arise from instrumentalities innocent in themselves, but capable of doing harm on being used in an ordinary and natural manner, as even poisons and most explosives. The initial wrong of exposing innocent persons to the...
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