Losee v. Saratoga Paper Co.

By the court, Bockes J. No person can be held liable for' an injury to the person or property of another unless he is proved to be in fault. Before liability will attach it must be shown, either that the act was unlawful or that it was performed in an unlawful manner. Where the act itself is unlawful, a suit may be maintained by the party injured thereby without showing negligence or want of proper care. As in the exploding purposely, a fire-cracker in the public street (29 Barb., 218). Also in throwing stones on to the premises of another purposely, or by an act purposely done (2 Coms.,. 159). Also in falling a tree on to the lands of another. Also [393] in building a dam on one’s own lands which causes the land of another to be overflowed (23 N. Y., 42.) These and similar acts are unlawful in themselves, and if an injury results therefrom, an action will be .without proof of negligence. If, however, a person in the performance of a lawful act canses an injury to the person or property of another, he is not liable in the absence of all negligence. The following are familiar examples, to wit: burning of fallows (29 Barb., 419; 22 Barb., 619 ; 8 Johns., 421); collisions on highways (24 Wend., 465 ; 3 East., 593; 10 Bing., 112); collisions on the sea (18 Johns., 265); breaking away of dam improperly' constructed (8 Goto., 175); injuries by reason of a horse taking fright and running against another (5 Bosw., 576; 2 E. D.. Smith, 413); injuries at ferries and on railroads, negligent use of fire-arms. The last class of cases being quite analogous to the case in hand it may be well to examine a little more at length. In Castle agt. Duryea (32 Barb., 480), the plaintiff was injured by the discharge of a gun, supposed to be loaded with blank-cartridge, but which was in fact loaded with ball. The recovery was ptit on the grounds of negligence. In Blin agt. Campbell (14 Johns., 432), the injury was occasioned by the firing of a pistol. The recovery was also put on the ground of negligence. In Cole agt. Fisher (11 Mass., 137), a horse was frightened by the discharge of a gun The liability was placed on the fact of negligence. Other analogous cases may be alluded to. In Harvey agt. Dunlop (Lalors’ Sup., 193), the action was for throwing a stone and putting out the eye of the plaintiff. The judge held that the action could not be maintained without showing that the act was willful or resulted from carelessness." The jury found for the defendant, and on motion for a new trial it was denied. In Bullock agt. Babcock (3 Wend., 391), a boy shot an arrow in a school-room putting out the eye of another. The judge remarked that it appeared to him that the act was [394] grossly negligent and unjustifiable, and that if the jury thought so they ought to find a verdict for the plaintiff. In Althorf agt. Wolfe (22 N. Y., 355), snow and ice were thrown from a roof into the public street, causing the death of a person. A recovery was allowed in favor of the administration on the ground of negligence. It was remarked in Fero agt. The Buff, and State Line R. R. Co. (22 N. Y., 209), that there must be proof of negligence to create a liability, arising from, the exercise of a conceded right. In the case of the blasting of the rocks, the explosion was intended, with knowledge of the injurious- results. It was1 tberefqre.a wrongful act, as much so as if the person engaged in-blasting had taken up the stones and cast them on to the lands of the adjoining owner. Not so, however, in the case of an unintentional explosion of a, steam boiler, employed in a lawful pursuit. Suppose a person be injured, or his property destroyed, by the unintentional explosion of a gun in the hands of another, could an action be maintained without showing negligence, A person has a right to discharge a gun on his own premises for a lawful purpose, properly directed. Suppose- in an attempt tó discharge it under such circumstances it exploded, and killed his neighbors horse or ox on the neighbors land, could an action be maintained in the absence of all negligence ? Clearly not. So in the use of steam power, a person has a right to employ it on his own premises to propel machinery.' If in so using it an explosion occurs causing injury to his neighbor, can an action be maintained without proof of negligence ? Certainly not, any more than it could be in case a fire from the fallow of one person consumes the property of the adjoining proprietor, In the cases supposed the party was doing a lawful act. Now, in the absence of all negligence, he- would be doing a lawful act in a lawful way. In such cases on what can. liability be predicated ? '. He is not in fault if not negligent, and the rule is without excep [395] tion, that no person can be held liable for an injury unless he be proved to be in fault. In the case at bar, was the act of using a steam boiler wrongful in itself, without reference to the manner in which it was made or used ? It cannot be held, I think, as matter of law, that the use of a steam boiler for the manufacture of paper is wrongful. There is nothing unlawful in that act simply. The defendants were engaged in a lawful enterprise, and had a right to bring to their aid any and all elements of power which could be controlled and safely employed under the exercise of watchfulness and prudence. The employment of steam by the defendants was not unlawful, if carefully and discreetly used. The injury resulted from an explosion of the boiler. The ground of liability was therefore carelessness or negligence in the use of an improper and dangerous article, or in the careless and negligent manner of using a well constructed and safe article. In either case negligence constituted the gist of the action. If the rule be otherwise, every explosion of a boiler of a steam vessel, under whatever circumstances of care and caution it may occur, will give a right of action for injuries resulting therefrom to persons and property, and the same may be said of every case of damages resulting from the use of steam engines on railroads. Yet in these and similar cases recoveries are not allowed without proof of negligence. It does not follow that because trespass may be maintained, proof of negligence is unnecessary to the action. Trespass may be maintained when the damages result directly and immediately from the wrongful act complained of. So the form of action may be trespass, when the gist of the action is negligence. Such was the case of Percival agt. Hickey (18 Johns., 256), and of several others above cited. But whatever may be the form of action, to adopt the language of Judge Cowen : 11 caution and due care is a defense predicable of him who is in legal pursuit of his own business, or engaged in the legal use of his own property.” It seems to me therefore that if [396] the use of the boiler in this case was wrongful it become so by reason of negligence, either in using an. article improperly constructed, or in using it in an unguarded and careless manner. The learned judge therefore erred in holding that the question of negligence was not in the case. According to the case of The Mayor agt. Cunliff (2 N. Y., 195), the Clutes were not liable in this action. They were, the mere builders or manufacturers of the boiler. They had no control of it at the time of the injury. If not'properly constructed they were liable perhaps to the party employing them to build it, but not to others who may be injured by its use. As to them I am of the opinion that the judgment dismissing the complaint is right, and should be" affirmed. But the judgment against the Saratoga Paper Company, . Bullard & Buchanan should be reversed. It is unnecessary here to pass on the question of the liability of Bullard & Buchanan. It is now impossible to say what the evidence will be against them, when the case shall be tried on the hypothesis that negligence must be proved in order to sustain a recovery by the plaintiff An action for negligence, may be maintained against principal and agent jointly under a certain state of facts (Phelps agt. Wait, 30 N. Y., 78, and cases there cited). The judgment in favor of the Clutes should be affirmed with costs, and the judgment against the other defendants should be reversed, new trial as to them ordered, costs to abide the event. Potter J., dissented. ° ^