chain of causation must have been broken between the plaintiff and the defendant. It could not then have been shown that the same result would have certainly happened had he not been negligent. If he had not been guilty of negligence, the fact of the mistake might have been discovered before any evil consequences had ensued. And if it could not be said that the result would have inevitably occurred by reason of the defendant's negligence, it could not be found that it had so occurred. The plaintiff, therefore, could not make out his case.1 This is the ground upon which Carter v. Towne, 103 Mass. 507, was decided. Gunpowder had been sold to a boy eight years old, who had taken it home and put it into a cupboard where it lay for more than a week, with the knowledge of his parents, or, in their · absence, of an aunt who had charge of him. His mother gave him some of the powder, which he fired off with her knowledge; and this was done a second time, when the boy was injured by the explosion. An action was now brought on his behalf against the seller of the powder; and the defendant was held not liable. Though he had been negligent in selling the powder to the boy, the connection of that negligence with the injury had been broken by the negligence of the boy's parents and aunt. Had they not been negligent, the accident might not have happened. The plaintiff could not prove what was incumbent upon him; to wit, that the damage was caused by the defendant. See s. c. 98 Mass. 567. In Powell v. Deveney, 3 Cush. 300, the defendant's servant left a truck standing beside a sidewalk in a public street, with the shafts shored up in the usual way. Another truckman temporarily left his loaded truck directly opposite on the other side of the street, after which a third truckman tried to drive his truck between the two others. In attempting to do so with due care, he hit the defendant's truck in such a manner as to whirl its shafts round on the sidewalk and cause them to strike the plaintiff and injure her. It was held that the defendant was liable. So, too, in the case of a dangerous article shipped through a carrier who has no notice of the dangerous character of the thing, the former is liable to one who is injured by the article (without his own fault), because in such case there has been no intervening fault to break the chain of connection; but it is otherwise if the carrier have notice of the character of the article, for "he who negligently meddles with a dangerous agency is liable for the damage." Wharton, Negligence, § 90. The carrier, on being informed of the nature of the package or article, should decline to receive it; otherwise, upon a principle analogous to that of Fletcher v. Rylands, ante, p. 492, he will be liable. 1 Such antecedents are sometimes spoken of as the remote cause, in distinction from the nearer ones as the proximate cause; but, in truth, as we have seen, the former is no cause at all. There is but one cause in the case supposed, and that is the intermediate negligence of A. And, generally, the terms "proximate" and "remote," when applied to causation, are as wrong as they are here. With this caution, we quote a very just observation from the opinion of the learned Mr. Justice Miller, in Insurance Co. v. Tweed, 7 Wall. 44, 52 "One of the most valuable of the criteria furnished us by these authorities is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote." If the intermediate parties, however, be free from fault, it cannot matter, upon the doctrine of the principal case, how many hands the article may have passed through; the shipper will be liable. Farrant v. Barnes, 11 Com. B. N. s. 553. See George v. Skivington, Law R. 5 Ex. 1; Wellington v. Downer Oil Co., 104 Mass. 64. If the action be in fact or in substance ex contractu, or, more accurately, if a contractual relation exist between the plaintiff and the defendant, it will not affect the question of the latter's liability that the negligence of a third person intervened and produced the damage; for the defendant is bound by his contract. Thus, in Eaton v. Boston & L. R. Co., 11 Allen, 500, in which the plaintiff sued the defendants as carriers of passengers for injuries sustained, the defence was that the injuries were caused by another train running into that in which the plaintiff was riding, and by other intervening negligent agencies, over which the defendants had no control; but the court properly decided that this was no defence. At the time of the injury complained of," said Colt, J., "the relation of passenger and carrier existed by contract between the plaintiff and the defendants; they had received the plaintiff upon their cars, and were bound to the exercise of all that care and caution which the relation imposes. . . . And it is no answer to an action by a passenger against a carrier that the negligence or trespass of a third party contributed to the injury. These propositions would be more manifest if this action had been brought in form upon the implied undertaking of the defendants; but the plaintiff may elect to sue in tort or contract, and the rule of duty is the same in either form of action." That is, the plaintiff having a right to sue in contract in such cas, in which form of action the intermediate negligence would have been no defence, it cannot be set up in bar of the right to damages, though the plaintiff have sued in tort. A recent English case affords another example of the same kind. The defendants were under contract to supply the plaintiffs with a proper gas-pipe. Gas escaped from a defect in this pipe, and the servant of a third person negligently took a lighted candle into the room from whence the escape proceeded, and the result was an explosion, causing damage to the plaintiff's stock and premises. It was held in the Court of Exchequer, and afterwards in the Exchequer Chamber, that the plaintiff was entitled to recover for the damage sustained. Burrows v. March Gas Co., Law R. 5 Ex. 67; s. c. Law R. 7 Ex. 96. Two of the judges in the former court rested the liability of the defendants on the ground of joint negligence between them and the third person; but the third, Martin, B., rested it correctly on the ground of contract; and upon this ground the judgment was affirmed on the appeal. Cockburn, C. J., who delivered the opinion of the Exchequer Chamber, said: "The action is not for negligence in its ordinary sense, but for the breach of a contract whereby the defendants promised to supply the plaintiff with a proper and sufficient service-pipe from their mains to a gasmeter within his premises; and the question is, whether there has been a breach of this contract. There can be no doubt that there has been a breach." This is the true and only ground upon which the case can be sustained, unless our discussion of causation is radically wrong. Had the negligence of the defendants and the third person been concurrent, instead of successive, then they would have been liable, irrespective of the existence of a contract; they would have been liable to strangers, upon the principle that co-tortfeasors are each and all liable for the common tort. But, with all respect to the two learned judges in the Exchequer, the negligence was not joint, but successive; and in such cases we apprehend that the true question is (not whether the defendant's conduct afforded the means for the intervening party to do the act which resulted in the injury, but), whether the plaintiff can prove that the defendant's conduct caused the damage. This he cannot do, for reasons already stated, if there was intervening fault which resulted in the calamity. See Lannen v. Albany Gas Co., 44 N. Y. 459, a similar case to the above, except that the explosion was caused by the defendants' servant. Allison v. Western R. Co., 64 N. Car. 382. There are other cases, however, which are inconsistent with the above view; but we think they cannot be sustained. Thus, in Illidge v. Goodwin, 5 Car. & P. 190, it appeared that the owner of a horse had negligently left bim standing before his cart in the street, when a passer-by struck the animal and caused him to back into the plaintiff's window; and it was held at nisi prius that the owner of the horse was liable. Now, if by this it is meant that every owner of a horse is liable for damage committed by him through the misconduct of a stranger, simply because he, the owner, has left his horse unguarded, the case is not law. But it may have been that the evidence showed that the horse had attempted to bite the passer-by; and, if so, the jury or court may not have thought the man to blame for retaliating. In order to break the connection, the intervening act must in fine have been so far from the natural and usual result of the defendant's negligence as either to show clearly that the defendant's act or omission did not cause the damage, or to raise a presumption that it did not. It is true, the intervention of any agency prevents the plaintiff from being able to prove that the defendant caused the act. Thomas v. Winchester is itself an example; and so is Scott v. Shepherd. Had it not been for the act of the intermediate parties, the plaintiff probably would not have suffered injury. The doctrine of causation may not, therefore, hold absolutely good. But the law seeks fault and responsibility; its object being reparation. And, as in the one case the intermediate agent only accomplished the general purpose of the defendant,—the sale of the drug, — and in the other only the natural and inevitable sequence of the act, the law properly considers the first party as still acting down to the happening of the calamity. The intermediate parties in either case were but vehicles for the transmission of the dangerous article. In any other view, supposing the intermediate persons to act independently of the purpose or nature of the first party, the latter could not be liable. The law cannot hold the first party liable if the second acts contrary to his obvious purpose or the nature of his act. See Davidson v. Nichols, 11 Allen, 514, where a harmless chemical preparation became explosive only by mixture with another substance; and this being a use which was not intended, the defendant was held not liable for the damage so caused. So, too, the rise of a whirlwind, or an unexpected storm, or other act which may be embraced under the term vis major, may intervene between the negligence of the defendant and the damage; and as such things do not happen as the natural sequence of the defendant's act or omission, he cannot be liable. See a learned consideration of this and kindred points in Wharton, Negligence, §§ 114-130. Breaches of Contract. But in Thomas v. Winchester, the plaintiff sued one of the parties to a contract in which he had no interest, in respect of a wrong (the negligent labelling and vending of the drug) which was also a breach of this contract. It is true, the circumstances of the case were such that the court was able to distinguish it from those English cases in which it has been held that none but the parties to a contract can sue for its breach. The court, in Thomas v. Winchester, say that the sale of belladonna as dandelion would naturally and almost inevitably result in injury; while it is not generally the natural and necessary consequence of the breach of a contract to injure third persons. tice of the English courts in the wellknown case of Langridge v. Levy, 2 Mees. & W. 519; s. c. 4 Mees. & W. 337. The plaintiff recovered, though not a contracting party with the defendant; but the ground of the decision was, that the defendant knew that the dangerous article (a gun) was to be used by the plaintiff. In the next case, no such fact appeared, and the right of action was denied. Winterbottom v. Wright, 10 Mees. & W. 109, the case referred to in Thomas v. Winchester, of the action by the stage-driver against the contractor for the supply of mail-coaches. Lord Abinger and Alderson, B., 'give no reason for the decision, except that to allow the action would be to extend the right to limitless persons, a not very satisfactory reason. said that the plaintiff's declaration alleged the duty as growing out of the contract with the Postmaster-General. How the case would have struck him had a general duty, regardless of contract, been alleged, does not appear. Rolfe, B., These cases have recently been followed by two others. Collis v. Selden, Law R. 3 Com. P. 495, and Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706; s. c. 10 Best & S. 759. In the former, the plaintiff sued for injuries resulting from the fall of a chandelier in a public-house. The declaration alleged that defendant wrongfully, negligently, and improperly hung a chandelier in the public-house, knowing that the plaintiff and others were likely to be therein and under the chandelier, and that the chandelier, unless properly hung, was likely to fall upon and injure them; and that, the plaintiff being lawfully in the public-house, the chandelier fell upon and injured him. The subject first came under the no- To this there was a demurrer, which Although this is an obvious ground of distinction, we apprehend that it was not necessary to take it. We doubt if the English courts would accept it. In Collis v. Selden, infra, the damage was as natural and probable as that in Thomas v. Winchester. The English doctrine proceeds upon the broad ground that the damage in such cases arises from the breach of a contract, and that third persons, having no interest in the contract, can have no rights growing out of its breach. was sustained. It was held that, notwithstanding the form of the declaration, the case fell within the principle of Winterbottom v. Wright, supra. It was conceded, however, that if there had been an allegation that the defendant knew that the chandelier was improperly hung, the action might have been maintained. The case would then have come within Langridge v. Levy. See Longmeid v. Holliday, 6 Ex. 766; George v. Skivington, Law R. 5 Ex. 1; also the form of the declaration in Wellington v. Downer Oil Co., 104 Mass. 64. Byles, J., said that negligence alone was not enough; it must be shown that there was some breach of duty. As to that, it did not appear what capacity the defendant filled, or who and what the plaintiff was, whether a guest or bare licensee.' Playford v. United Kingdom Tel. Co., supra, was an action for negligence by the person to whom a message had been erroneously transmitted by the defendants. The court held that the action could not be maintained, on the ground that the obligation of a telegraph company to use due care and skill in the transmission of messages arose entirely out of contract; that the defendants' charter had not affected the relation of the company to the sender or the receiver of a despatch; and that, the contract having been made with the sender of the message, the plaintiff had no right of action. These are the chief English cases upon the point. With all respect for the English courts, we apprehend that it is a mistake to suppose that the plaintiff's cause of action is necessarily the breach of a contract. The fact that a contract existed, and was broken at the same time and by the same act or omission by which the plaintiff's cause of action arose, is only one of the accidents of the situation. The defendant owed, in respect of the same thing, two distinct duties: one of a special character to the party with whom he contracted, and one of a general character to others. The latter, it must be conceded, had an existence before the contract was entered into. A carriage-maker allows the plaintiff to try a carriage, with a view to effecting a sale; and, owing to negligence in its construction, the carriage breaks down and injures the plaintiff. This is a good cause of action; and yet there was no contract. A clerk in a drug-store goes to a phial labelled with a drug used for curing the toothache, and, applying some of the contents to his tooth, becomes badly poisoned; the manufacturer having wrongly labelled the phial. Has not the clerk (his employer not being at fault) as good a cause of action against the manufacturer as if he had bought the drug of him? The duty, therefore, does not grow out of the contract, but exists before and independently of it. The fact might be shown by many cases. See, for instance, the class of cases in which a passenger without hire has been held entitled to recover of a carrier for damage sustained by reason of negligence. Nolton v. Western R. Corp., 15 N. Y. 444; Derby v. Reading R. Co., 14 How. 468; or those in which a party is liable for the negligent performance of an agreement made without consideration. Gill v. Middleton, 105 Mass. 477. What, then, becomes of this duty when the contract of sale is consummated with the intermediate party? How is it possible that an obligation due to third persons can be discharged without their consent, by the mere 1 But quære, if that could be material in an action not against the landlord? |