CHAPTER IV. DANGEROUS AGENCIES. Possessor of dangerous agency bound to Persons forwarding explosive compounds guard it, § 851. Owner of land liable for dangerous material, through carrier, § 854. Explosion of steam-engine, § 857. Owner of dangerous machinery liable when left with ignorant person, § 859. And so when it is left in a place where it is probable that it may be meddled with, § 860. [As to fire-works, see § 881.] § 851. Possessor of dangerous agency bound to guard it. Wherever material, dangerous unless particularly guarded, is left unguarded, the party so leaving it is responsible for damages to another thereby produced.1 At common law a person using dangerous instruments or mechanisms does so at his peril, and is responsible for any damages not caused by extraordinary natural occurrences, or by the interposition of strangers.2 But if the dangerous material is left at a particular place without the owner's fault, and if there is no special duty imposed on him to remove or guard it, he is not responsible for negligence on account of damages resulting from its continuance in the place where it was thus left.3 § 852. Owner of land liable for dangerous matter which may pass naturally from his soil to another's. The owner of land, on which dangerous or mischievous material is stored, is bound to prevent such material from, in the ordinary course of events, passing to and injuring a neighbor. But he is not responsible for other than the natural and ordinary consequences of such possession on his part; and the case against him must exclude the 1 Dixon v. Bell, 5 M. & S. 188; Gilbertson ". Richardson, 5 C. B. 502; Bird v. Holbrook, 4 Bing. 628; Jordin v. Crump. 8 M. & W. 782; Wootten v. Dawkins, 2 C. B. N. S. 412; Ellis v. Sheffield Gas Co. 2 E. & B. 767. "The law of England, in its care for human life, requires consummate caution in the person who deals with dangerous weapons." Per Erle, C. J. - Potter v. Faulkner, 1 B. & S. 805. 2 Fletcher v. Rylands, Law Rep. 1 Ex. 265, 279; aff. L. R. 1 H. of L. 330. 3 See Brown v. Mallets, 5 C. B. 599. Fletcher v. Rylands, 3 H. L. Cas. 330. See Pixley v. Clark, 35 N. Y. 520, and cases cited in Washburn on Easements (3d ed.), pp. 382–3, 603. hypothesis of injury caused by the mischievous interposition of a stranger. So, also, he is not liable unless negligence on his part appear.2 § 853. When dangerous instrument is given to person ignorant or incapable of reason. It has been already shown that a person is primarily liable for mischief by means of a dangerous instrument given by him to an agent incapable of reason, or ignorant of the nature of the thing, though the injury be directly wrought by the latter. As illustrating this position may be cited where the defendant, being possessed of a loaded gun, sent a young girl to fetch it, with directions to take the priming out, which was accordingly done; and an injury ac a leading English case, 1 Wilson v. Newberry, L. R. 7 Q. B. 31. See supra, § 134. 2 Smith v. Fletcher, L. R. 9 Exch. 64. In Wilson v. Newberry, Mellor, J., said: "I am of opinion that this declaration is bad. The duty alleged does not result from the facts stated; the facts upon which this duty is said to be founded are these: The defendant was possessed of certain yew-trees then being in and upon certain lands of the defendant in his occupation, the clippings of which yew-trees were, to the knowledge of the defendant, poisonous. These are the only facts from which the duty charged is to be inferred, and it is alleged in the following terms: Whereupon it became and was the duty of the defendant to take due and proper care to prevent the said clippings off the said yew-trees from being put or placed in and upon land other than land of the defendant, or in his occupation, where the horses and cattle of his neighbors and others might be enabled to eat them.' Now, it is not alleged that the defendant clipped the yew-trees; it is not alleged that he knew the yew-trees were clipped; and it is not alleged that he had anything to do with the escape of the yew clippings on to his neighbor's land. It is quite consistent with the averments 1 Law Rep. 3 H. L. 330. of this declaration that the cutting may have been done by a stranger without the defendant's knowledge. I cannot think that the duty charged can be deduced from the facts stated. 2 "The case of Fletcher v. Rylands 1 has no analogy to this case. The foundation of the doctrine there laid down is derived from an old case in Salkeld, in which it was determined that it was the duty of a man to keep his own filth on his own ground. If a person brings on to his own land things which have a tendency to escape and to do mischief, he must take care that they do not get on to his neighbor's land. This is a very different proposition from that which has been contended for on behalf of the plaintiff; it is that where a person has yewtrees growing on his land which are clipped by some means, he must prevent the clippings from escaping on to his neighbor's land, and from being placed there by a stranger." So, Fletcher v. Rylands has been held not to apply to ancient reservoirs established in India for irrigation. Madras R. R. v. Zemindar, 30 L. T. N. S. 771; cited supra, § 783; infra, § 934. 8 Supra, § 88, 92, 95. 4 Dixon v. Bell, 5 M. & S. 198. 2 Tenant v. Goldwin, 1 Salk. 360. [BOOK III. cruing to the plaintiff's son in consequence of the girl's presenting the gun at him and drawing the trigger, when the gun went off, it was held, that the defendant was liable to damages in an action on the case. So a person who sells gunpowder to a boy, eight years of age, who has no knowledge or experience in its use, and who subsequently injures himself by an explosion, has been held liable for the injury;1 and so of a retailer of burning fluids, who sells naphtha, a dangerous and explosive fluid, without giving notice of its character, to a person ignorant of such character.2 So where an inexperienced agent was left in charge of a train of cars, for the purpose of loading the cars with oil, and through his ignorance or unskilful management a collision occurred between one of the cars and the locomotive, resulting in a fire which burned plaintiff's house, the railroad company was held responsible for his acts.3 § 854. Persons forwarding explosive compounds through carrier. A person shipping an explosive compound without notice is liable for consequences, although these result from the opening of the package by a warehouseman ignorant of its contents, who was led to open the package from the fact of its leaking.* § 855. Where the defendant caused a carboy containing nitric acid to be delivered to the plaintiff, who was one of the servants of a carrier, in order that it might be carried by such carrier for the defendant, and the defendant did not take reasonable care to make the plaintiff aware that the acid was dangerous, but only informed him that it was an acid, and the plaintiff was burnt and 1 Carter v. Towne, 98 Mass. 567. In this case a declaration that the defendant, knowing that the plaintiff, a child eight years old, had neither experience in nor knowledge of the use of gunpowder, and was an unfit person to be intrusted with it, sold and delivered gunpowder to him, and that he, in ignorance of its effects, and using that care of which he was capable, exploded it and was burned thereby, was held to set forth a good cause of action, and to which the fact that the defendant was a duly licensed seller of gunpowder is no defence. 2 Wellington v. Downer Ker. Oil Co. 104 Mass. 64. Oil Creek, &c. Co. v. Keighron, Legal Gazette, January 9, 1874; S. C. Legal Int. January 16, 1874. See supra, § 90, 563, 774. 4 Barney v. Burstenbinder, 7 Lansing, 210; S. C. 64 Barb. 212. See Pierce v. Windsor, 2 Sprague, 35; Jeffrey v. Bigelow, 13 Wend. 518; Thomas v. Winchester, 2 Seld. 397; Boston & A. R. R. v. Shanly, 107 Mass. 568; Williams v. E. Ind. Co. 3 East, 192; Brass v. Maitland, 6 El. & B. 470; Farrant v. Barnes, 11 C. B. (N. S.) 533. As to selling poison without notice, see Norton v. Sewell, 106 Mass. 143; supra, § 90; infra, § 859. injured by reason of the carboy bursting, when, in ignorance of its dangerous character, he was carrying it on his back from the carrier's cart, it was held that the defendant was liable in an action for damages for such injury.1 In his judgment, Erle, C. J. says: "I am of opinion that it was the duty of the defendant, knowing the dangerous nature of the acid which was in the carboy, to take reasonable care that its dangerous nature should be communicated to all those who were about to carry it. Now it is found by the jury that he did not do so. The accident occurred, perhaps, from the explosive character of the article; but be this as it may, it seems to me that the plaintiff was employed by the defendant to carry it, and so comes within the distinction pointed out in Langridge v. Levy,2 as the principle of that case. I rely, however, on the case of Brass v. Maitland,3 as establishing the principle which governs the present case. There it was held by Lord Campbell, that while the owners of a general ship undertake that they will receive goods and safely carry them and deliver them at the destined port, the shippers undertake that they will not deliver, to be carried on the voyage, packages of goods of a dangerous nature, which those employed on behalf of the shippers may not on inspection be reasonably expected to know to be of a dangerous nature, without expressly giving notice that they are of a dangerous nature.' So Willes, J., says: 'I apprehend that a person, who gives a carrier goods of a dangerous character to carry, which require more caution in their carriage than ordinary merchandise, as without such caution they would be likely to injure the carrier and his servants, is bound in law to give notice of the dangerous character of such goods to the carrier, and that if he does not do so he is liable for the consequence of such omission.' § 856. One who has in his possession a dangerous article that he desires to send to another may send it by a common carrier if he will take it; but it is his duty to give him notice of its character, so that he may either refuse to take it, or be enabled, if he takes it, to make suitable provisions against the danger.' "4 1 Farrant v. Barnes, 11 Com. B. 553; 31 L. J. C. P. 137. 2 4 Mee. & Wel. 337; 7 L. J. Ex. 387. 86 Ell. & Bla. 470; 26 L. J. Q. B. 49. See supra, § 563. 4 Chapman, C. J.- Bost. & A. R. R. v. Carney, 107 Mass. 676, citing Williams v. East I. Co. 3 East, 192; Brass v. Maitland, 6 E. & B. 470; Farrant v. Barnes, 11 C. B. (N. S.) 553. Under such circumstances the carrier, unconscious of the character of the package, is not liable for damage caused by its explosion.1 1 Parrott v. Wells, 15 Wall. 524. The facts of this case, as related by the reporter, are as follows: In 1866 the defendants, who were expressmen engaged in carrying packages between New York and California, by way of the Isthmus of Panama, received at New York a box containing nitro-glycerine to be carried to California. There was nothing in the appearance of the box tending to excite any suspicion of the character of its contents. It was received and carried in the usual course of business, no information being asked or given as to its contents. On arriving at San Francisco, California, its contents were leaking, and resembled sweet oil. The box was then taken for examination, as was the custom with the defendants when any box carried by them appeared to be damaged, to the premises occupied by them, which were leased from the plaintiff. Whilst a servant of the defendants, by their direction, was attempting to open the box the nitroglycerine exploded, injuring the premises occupied by them, and other premises leased by the plaintiff to and occupied by other parties. The defendants had no knowledge of and no reason to suspect the dangerous character of the contents. They repaired the injury to the premises occupied by them. Held, that they were not liable for the damage caused by the accident to the premises occupied by other parties. It was also ruled that where there is nothing to excite the suspicion of a common carrier as to the contents of a package carried by him, it is not negligence on his part to introduce the package, when appearing to be damaged, into his place of business for examination, and to handle it in the same manner as other packages of similar outward appearance are usually introduced for examination and handled. And it was held that the measure of care against accidents, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own. ... Field, J.: . . . "If express carriers are thus chargeable with notice of the contents of packages carried by them, they must have the right to refuse to receive packages offered for carriage without knowledge of their contents. It would, in that case, be unreasonable to require them to accept, as conclusive in every instance, the information given by the owner. They must be at liberty, whenever in doubt, to require for their satisfaction, an inspection even of the contents as a condition of carrying the packages. This doctrine would be attended in practice with great inconvenience, and would seldom lead to any good. Fortunately the law is not so unreasonable. It does not exact any such knowledge on the part of the carrier, nor permit him, in cases free from suspicion, to require information as to the contents of the packages offered as a condition of carrying them. This was ruled directly by the common pleas in England in the case of Crouch v. The London & Northwestern Railway (14 Common Bench, 291). The proposition that a carrier is, in all cases, entitled to know the nature of the goods contained in the packages offered to him for carriage, is there stated to be unsupported by any authority, and one that would not stand the test of reasoning. "In Brass v. Braitland (6 Ellis & Blackburn, 485), it was held by the |