Chapter XIX: Section VII: Liability to Third Persons of Maker or Vendor of a Chattel (2)

If a person contracts with another to use ordinary care or skill toward him or his property, the obligation need not be considered in the light of a duty; it is an obligation of contract. It is undoubted, however, that there may be the obligation of such a duty from one person to another although there is no contract between them with regard to such duty. Two drivers meeting have no contract with each other, but under certain circumstances they have a reciprocal duty toward each other. So two ships navigating the sea. So a railway company which has contracted with one person to carry another has no contract with the person carried, but has a duty toward that person. So the owner or occupier of a house or land who permits a person or persons to come to his house or land has no contract with such person or persons, but has a duty toward him or them. It should be observed that the existence of a contract between two persons does not prevent the existence of the suggested duty between them also being raised by law independently of the contract, by the facts with regard to which the contract is made and to which it applies an exactly similar but a contract duty. We have not in this case to consider the circumstances in which an implied contract may arise to use ordinary care and skill to avoid danger to the safety of person or property. We have not in this case to consider the question of a fraudulent misrepresentation, express or implied, which is a well-recognized head of law. The questions which we have to solve in this case are: What is the proper definition of the relation between two persons other than the relation established by contract, or fraud, which imposes on one of them a duty toward the other to observe, with regard to the person or property of such other, such ordinary care or skill as may be necessary to prevent injury to his person or property; and whether the present case falls within such definition? When two drivers or two ships are approaching each other, such a relation arises between them when they are approaching each other in such a manner that, unless they use ordinary care and skill to avoid it, there will be danger of an injurious collision between them. This relation is established in such circumstances between them, not only if it be proved that they actually know and think of this danger, but whether such proof be made or not. It is established, as it seems to me, because any one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill under such circumstances there would be such danger. And every one ought, by the universally recognized rules of right and wrong, to think so much with regard to the safety of others who may be jeopardized by his conduct; and if, being in such circumstances, he does not think, and in consequence neglects, or if he neglects to use ordinary care and skill, and injury ensue, the law, which takes cognizance of and enforces the rules of right and wrong, will force him to give an indemnity for the injury. In the case of a railway company carrying a passenger with whom it has not entered into the contract of carriage, the law implies the duty, because it must be obvious that unless ordinary care and skill be used the personal safety of the passenger must be endangered. With regard to the condition in which an owner or occupier leaves his house or property other phraseology has been used, which it is necessary to consider. If a man opens his shop or warehouse to customers it is said that he invites them to enter, and that this invitation raises the relation between them which imposes on the inviter the duty of using reasonable care so to keep his house or warehouse that it may not endanger the person or property of the person invited. This is in a sense an accurate phrase, and as applied to the circumstances a sufficiently accurate phrase. Yet it is not accurate if the word “invitation” be used in its ordinary sense. By opening a shop you do not really invite, you do not ask A. B. to come in to buy; you intimate to him that if it pleases him to come in he will find things which you are willing to sell. So in the case of shop, warehouse, road, or premises, the phrase has been used that if you permit a person to enter them you impose on yourself a duty not to lay a trap for him. This, again, is in a sense a true statement of the duty arising from the relation constituted by the permission to enter. It is not a statement of what causes the relation which raises the duty. What causes the relation is the permission to enter and the entry. But it is not a strictly accurate statement of the duty. To lay a trap means in ordinary language to do something with an intention. Yet it is clear that the duty extends to a danger the result of negligence without intention. And with regard to both these phrases, though each covers the circumstances to which it is particularly applied, yet it does not cover the other set of circumstances from which an exactly similar legal liability is inferred. It follows, as it seems to me, that there must be some larger proposition which involves and covers both sets of circumstances. The logic of inductive reasoning requires that where two major propositions lead to exactly similar minor premises there must be a more remote and larger premise which embraces both of the major propositions. That, in the present consideration, is, as it seems to me, the same proposition which will cover the similar legal liability inferred in the cases of collision and carriage. The proposition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that 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. Without displacing the other propositions to which allusion has been made as applicable to the particular circumstances in respect of which they have been enunciated, this proposition includes, I think, all the recognized cases of liability. It is the only proposition which covers them all. It may, therefore, safely be affirmed to be a true proposition, unless some obvious case can be stated in which the liability must be admitted to exist, and which yet is not within this proposition. There is no such case. Let us apply this proposition to the case of one person supplying goods or machinery or instruments or utensils, or the like, for the purpose of their being used by another person, but with whom there is no contract as to the supply. The proposition will stand thus: whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care or skill whereby injury happens, a legal liability arises to be enforced by an action for negligence. This includes the case of goods, etc., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property. The cases of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arises under the contract, and not merely as a duty imposed by law, though it may not be useless to observe that it seems difficult to import the implied obligation into the contract except in cases in which if there were no contract between the parties the law would, according to the rule above stated, imply the duty.

Examining the rule which has been above enunciated with the cases which have been decided with regard to goods supplied for the purpose of being used by persons with whom there is no contract, the first case to be considered is inevitably Langridge _v._ Levy, 2 M. & W. 519; 4 id. 337. It is not an easy case to act upon. It is not, it cannot be, accurately reported; the declaration is set out; the evidence is assumed to be reported; the questions left to the jury are stated. And then it is said that a motion was made to enter a nonsuit in pursuance of leave reserved on particular grounds. These grounds do not raise the question of fraud at all, but only the question of remoteness. And although the question of fraud seems in a sense to have been left to the jury, yet no question was, according to the report, left to them as to whether the plaintiff acted on the faith of the fraudulent misrepresentation, which is, nevertheless, a necessary question in a case of fraudulent misrepresentation. The report of the argument makes the object of the argument depend entirely upon an assumed motion to arrest the judgment, which raises always a discussion depending entirely on the form of the declaration, and the effect on it of a verdict, in respect of which it is assumed that all questions were left to the jury. If this was the point taken the report of the evidence and of the questions left to the jury is idle! The case was decided on the ground of a fraudulent misrepresentation as stated in the declaration. It is inferred that the defendant intended the representation to be communicated to the son. Why he should have such an intention in fact it seems difficult to understand. His immediate object must have been to induce the father to buy and pay for the gun. It must have been wholly indifferent to him whether, after the sale and payment, the gun would be used or not by the son. I cannot hesitate to say that, in my opinion, the case is a wholly unsatisfactory case to act on as an authority. But taking the case to be decided on the ground of a fraudulent misrepresentation made hypothetically to the son, and acted upon by him, such a decision upon such a ground in no way negatives the proposition that the action might have been supported on the ground of negligence without fraud. It seems to be a case which is within the proposition enunciated in this judgment, and in which the action might have been supported without proof of actual fraud. And this seems to be the meaning of Cleasby, B., in the observations he made on Langridge _v._ Levy, _supra_, in the case of George _v._ Skivington, L. R. 5 Ex. 1, 5. In that case the proposition laid down in that judgment is clearly adopted. The ground of the decision is that the article was, to the knowledge of the defendant, supplied for the use of the wife and for her immediate use. And certainly, if he or any one in his position had thought at all, it must have been obvious that a want of ordinary care or skill in preparing the prescription sold would endanger the personal safety of the wife.

In Corby _v._ Hill, 4 C. B. (N. S.) 556, it is stated by the Lord Chief Justice that an allurement was held out to the plaintiff. And Willes, J., stated that the defendant had no right to set a trap for the plaintiff. But in the form of declaration suggested by Willes, J., on p. 567, there is no mention of allurement, or invitation or trap. The facts suggested in that form are, “that the plaintiff had license to go on the road, that he was in consequence accustomed and likely to pass along it, that the defendant knew of that custom and probability, that the defendant negligently placed slates in such a manner as to be likely to prove dangerous to persons driving along the road, that the plaintiff drove along the road, being by reason of the license lawfully on the road, and that he was injured by the obstruction.” It is impossible to state a case more exactly within the proposition laid down in this judgment. In Smith _v._ London & St. Katharine Docks Co., L. R. 3 C. P. 326, the phrase is again used of invitation to the plaintiff by the defendants. Again, let it be observed that there is no objection to the phrase as applied to the case. But the real value of the phrase may not improperly be said to be that invitation imports knowledge by the defendant of the probable use by the plaintiff of the article supplied, and therefore carries with it the relation between the parties which establishes the duty. In Indermaur _v._ Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311, reliance is again placed upon a supposed invitation of the plaintiff by the defendant. But, again, it is hardly possible to state facts which bring a case more completely within the definition of the present judgment. In Winterbottom _v._ Wright, 10 M. & W. 109, it was held that there was no duty cast upon the defendant with regard to the plaintiff. The case was decided on what was equivalent to a general demurrer to the declaration. And the declaration does not seem to show that the defendant, if he had thought about it, must have known, or ought to have known, that the coach would be necessarily or probably driven by the plaintiff, or by any class of which he could be said to be one, or that it would be so driven within any time which would make it probable that the defect would not be observed. The declaration relied too much on contracts entered into with other persons than the plaintiff. The facts alleged did not bring the case within the proposition herein enunciated. It was an attempt to establish a duty toward all the world. The case was decided on the ground of remoteness. And it is as to too great a remoteness that the observation of Lord Abinger is pointed, when he says that the doctrine of Langridge _v._ Levy, _supra_, is not to be extended. In Francis _v._ Cockrell, L. R. 5 Q. B. 501, the decision is put by some of the judges on an implied contract between the plaintiff and the defendant. But Cleasby, B. (p. 515), puts it upon the duty raised by the knowledge of the defendant that the stand was to be used immediately by persons of whom the plaintiff was one. In other words, he acts upon the rule above laid down. In Collis _v._ Selden, L. R. 3 C. P. 495, it was held that the declaration disclosed no duty. And obviously, the declaration was too uncertain. There is nothing to show that the defendant knew more of the probability of the plaintiff rather than any other of the public being near the chandelier. There is nothing to show that the plaintiff was more likely to be in the public-house than any other member of the public. There is nothing to show how soon after the hanging of the chandelier any one might be expected or permitted to enter the room in which it was. The facts stated do not bring it within the rule. There is an American case: Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455, cited in Mr. Horace Smith’s Treatise on the Law of Negligence, p. 88, note (t), which goes a very long way. I doubt whether it does not go too far. In Longmeid _v._ Holliday, 6 Ex. 761, a lamp was sold to the plaintiff to be used by the wife. The jury were not satisfied that the defendant knew of the defect in the lamp. If he did, there was fraud; if he did not, there seems to have been no evidence of negligence. If there was fraud, the case was more than within the rule. If there was no fraud the case was not brought by other circumstances within the rule. In Gautret _v._ Egerton, L. R. 2 C. P. 374, the declaration was held by Willes, J., to be bad on demurrer, because it did not show that the defendant had any reason to suppose that persons going to the docks would not have ample means of seeing the holes and cuttings relied on. He does not say there must be fraud in order to support the action. He says there must be something like fraud. He says: “Every man is bound not wilfully to deceive others.” And then, in the alternative, he says: “or to do any act which may place them in danger.” There seems to be no case in conflict with the rule above deduced from well admitted cases. I am, therefore, of opinion that it is a good, safe, and just rule.

I cannot conceive that if the facts were proved which would make out the proposition I have enunciated, the law can be that there would be no liability. Unless that be true, the proposition must be true. If it be the rule the present case is clearly within it. This case is also, I agree, within that which seems to me to be a minor proposition, namely, the proposition which has been often acted upon, that there was in a sense an invitation of the plaintiff by the defendant to use the stage. The appeal must, in my opinion, be allowed, and judgment must be entered for the plaintiff.

COTTON, L. J., BOWEN, L. J., concurs in the judgment I am about to read. [The opinion holds defendant liable, on the ground that he must be considered as having invited the workman to use the dock and all appliances provided by the dock-owner as incident to the use of the dock; and that he was under obligation to take reasonable care that at the time the appliances provided for immediate use in the dock were furnished by him they were in a fit state to be used. The opinion then proceeds as follows:—]

This decides this appeal in favor of the plaintiff, and I am unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertains, inasmuch as there are many cases in which the principle was impliedly negatived.

Take, for instance, the case of Langridge _v._ Levy, _supra_, to which the principle, if it existed, would have applied. But the judges who decided that case based their judgment on the fraudulent representation made to the father of the plaintiff by the defendant. In other cases where the decision has been referred to, judges have treated fraud as the ground of the decision; as was done by Coleridge, J., in Blackmore _v._ Bristol & Exeter Ry. Co., 8 E. & B. 1035; and in Collis _v._ Selden, L. R. 3 C. P. 495, Willes, J., says that the judgment in Langridge _v._ Levy, _supra_, was based on the fraud of the defendant. This impliedly negatives the existence of the larger general principle which is relied on, and the decisions in Collis _v._ Selden, _supra_, and in Longmeid _v._ Holliday, _supra_ (in each of which the plaintiff failed), are, in my opinion, at variance with the principle contended for. The case of George _v._ Skivington, _supra_, and especially what is said by Cleasby, B., in giving judgment in that case, seems to support the existence of the general principle. But it is not in terms laid down that any such principle exists, and the case was decided by Cleasby, B., on the ground that the negligence of the defendant which was his own personal negligence was equivalent, for the purposes of that action, to fraud, on which (as he said) the decision in Langridge _v._ Levy, _supra_, was based.[174]

In declining to concur in laying down the principle enunciated by the Master of the Rolls, I in no way intimate any doubt as to the principle that 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.

For the reasons stated I agree that the plaintiff is entitled to judgment, though I do not entirely concur with the reasoning of the Master of the Rolls.

_Judgment reversed._

MacPHERSON _v._ BUICK MOTOR COMPANY
COURT OF APPEALS, NEW YORK, MARCH 14, 1916.
_Reported in 217 New York Reports, 382._

CARDOZO, J. The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and wilfully concealed it. The case, in other words, is not brought within the rule of Kuelling _v._ Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 5 Ann. Cas. 124. The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A poison was falsely labelled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. “The defendant’s negligence,” it was said, “put human life in imminent danger.” A poison, falsely labelled, is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to any one except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is, for present purposes, the important thing. Thomas _v._ Winchester became quickly a landmark of the law. In the application of its principle there may, at times, have been uncertainty or even error. There has never in this state been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall some of them will be helpful. Loop _v._ Litchfield, 42 N. Y. 351, 1 Am. Rep. 513, is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that the manufacturer was not answerable to the lessee. Loop _v._ Litchfield was followed in Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 638, the case of the explosion of a steam boiler. That decision has been criticized (Thompson on Negligence, 233; Shearman & Redfield on Negligence, [6th ed.] § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, but had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser. Beven, Negligence, (3d ed.) pp. 50, 51, 54; Wharton, Negligence, (2d ed.) § 134.

These early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311. The defendant, a contractor, built a scaffold for a painter. The painter’s servants were injured. The contractor was held liable. He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to be used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

From Devlin _v._ Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas _v._ Winchester was followed. That case is Statler _v._ Ray Mfg. Co., 195 N. Y. 478, 480, 88 N. E. 1063. The defendant manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. We held that the manufacturer was liable. We said that the urn “was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.”

It may be that Devlin _v._ Smith and Statler _v._ Ray Mfg. Co. have extended the rule of Thomas _v._ Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas _v._ Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin _v._ Smith, _supra_) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler _v._ Ray Mfg. Co., _supra_) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water. Torgesen _v._ Schultz, 192 N. Y. 156, 84 N. E. 956, 18 L. R. A. (N. S.) 726, 127 Am. St. Rep. 894. We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke _v._ Ireland, 26 App. Div. 487, 50 N. Y. Supp. 369, in an opinion by Cullen, J., it was applied to a builder who constructed a defective building; in Kahner _v._ Otis Elevator Co., 96 App. Div. 169, 89 N. Y. Supp. 185, to the manufacturer of an elevator; in Davies _v._ Pelham Hod Elevating Co., 65 Hun, 573, 20 N. Y. Supp. 523, affirmed in this court without opinion, 146 N. Y. 363, 41 N. E. 88, to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

Devlin _v._ Smith was decided in 1882. A year later a very similar case came before the Court of Appeal in England (Heaven _v._ Pender, 11 Q. B. D. 503). We find in the opinion of Brett, M. R., afterwards Lord Esher, the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself:

“Whenever one person supplies goods or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied, or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.”

He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods “would in all probability be used at once ... before a reasonable opportunity for discovering any defect which might exist,” and that the thing supplied is of such a nature “that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it.” On the other hand, he would exclude a case “in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect,” or where the goods are of such a nature that “a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property.” What was said by Lord Esher in that case did not command the full assent of his associates. His opinion has been criticized “as requiring every man to take affirmative precautions to protect his neighbors as well as to refrain from injuring them.” Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. (N. S.) 341. It may not be an accurate exposition of the law of England. Perhaps it may need some qualification even in our own state. Like most attempts at comprehensive definition, it may involve errors of inclusion and of exclusion. But its tests and standards, at least in their underlying principles with whatever qualification may be called for as they are applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas _v._ Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow.

We are not required at this time to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series is too remote to constitute, as to the ultimate user, an actionable wrong. Beven on Negligence, (3d ed.) 50, 51, 54; Wharton on Negligence, (2d ed.) § 134; Leeds _v._ N. Y. Tel. Co., 178 N. Y. 118, 70 N. E. 219; Sweet _v._ Perkins, 196 N. Y. 482, 90 N. E. 50; Hayes _v._ Hyde Park, 153 Mass. 514, 516, 27 N. E. 522, 12 L. R. A. 249. We leave that question open. We shall have to deal with it when it arises. The difficulty which it suggests is not present in this case. There is here no break in the chain of cause and effect. In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant’s liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go 50 miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons. It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin _v._ Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage-coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization requires them to be.

In reaching this conclusion, we do not ignore the decisions to the contrary in other jurisdictions. It was held in Cadillac Co. _v._ Johnson, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287, that an automobile is not within the rule of Thomas _v._ Winchester. There was, however, a vigorous dissent. Opposed to that decision is one of the Court of Appeals of Kentucky. Olds Motor Works _v._ Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689. The earlier cases are summarized by Judge Sanborn in Huset _v._ J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303. Some of them, at first sight inconsistent with our conclusion, may be reconciled upon the ground that the negligence was too remote, and that another cause had intervened. But even when they cannot be reconciled the difference is rather in the application of the principle than in the principle itself. Judge Sanborn says, for example, that the contractor who builds a bridge, or the manufacturer who builds a car, cannot ordinarily foresee injury to other persons than the owner as the probable result. 120 Fed. 865, at page 867, 57 C. C. A. 237, at page 239, 61 L. R. A. 303. We take a different view. We think that injury to others is to be foreseen not merely as a possible, but as an almost inevitable result. See the trenchant criticism in Bohlen, _supra_, at page 351. Indeed, Judge Sanborn concedes that his view is not to be reconciled with our decision in Devlin _v._ Smith, _supra_. The doctrine of that decision has now become the settled law of this state, and we have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom _v._ Wright, 10 M. & W. 109, is often cited. The defendant undertook to provide a mail coach to carry the mail bags. The coach broke down from latent defects in its construction. The defendant, however, was not the manufacturer. The court held that he was not liable for injuries to a passenger. The case was decided on a demurrer to the declaration. Lord Esher points out in Heaven _v._ Pender, _supra_, at page 513, that the form of the declaration was subject to criticism. It did not fairly suggest the existence of a duty aside from the special contract which was the plaintiff’s main reliance. See the criticism of Winterbottom _v._ Wright, in Bohlen, _supra_, at pages 281, 283. At all events, in Heaven _v._ Pender, _supra_, the defendant, a dock owner, who put up a staging outside a ship, was held liable to the servants of the shipowner. In Elliot _v._ Hall, 15 Q. B. D. 315, the defendant sent out a defective truck laden with goods which he had sold. The buyer’s servants unloaded it, and were injured because of the defects. It was held that the defendant was under a duty “not to be guilty of negligence with regard to the state and condition of the truck.” There seems to have been a return to the doctrine of Winterbottom _v._ Wright in Earl _v._ Lubbock, [1905] 1 K. B. 253. In that case, however, as in the earlier one, the defendant was not the manufacturer. He had merely made a contract to keep the van in repair. A later case (White _v._ Steadman, [1913] 3 K. B. 340, 348) emphasizes that element. A livery stable keeper who sent out a vicious horse was held liable, not merely to his customer, but also to another occupant of the carriage, and Thomas _v._ Winchester was cited and followed, White _v._ Steadman, _supra_, at pages 348, 349. It was again cited and followed in Dominion Natural Gas Co. _v._ Collins, [1909] A. C. 640, 646. From these cases a consistent principle is with difficulty extracted. The English courts, however, agree with ours in holding that one who invites another to make use of an appliance is bound to the exercise of reasonable care. Caledonian Ry. Co. _v._ Mulholland, [1898] A. C. 216, 227; Indermaur _v._ Dames, L. R. 1 C. P. 274. That at bottom is the underlying principle of Devlin _v._ Smith. The contractor who builds the scaffold invites the owner’s workmen to use it. The manufacturer who sells the automobile to the retail dealer invites the dealer’s customers to use it. The invitation is addressed in the one case to determinate persons and in the other to an indeterminate class, but in each case it is equally plain, and in each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A., who has contracted with B., a duty to C. and D. and others according as he knows or does not know that the subject-matter of the contract is intended for their use. We may find an analogy in the law which measures the liability of landlords. If A. leases to B. a tumble-down house, he is not liable, in the absence of fraud, to B.’s guests who enter it and are injured. This is because B. is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he omits to do so, his guests must look to him. Bohlen, _supra_, at page 276. But if A. leases a building to be used by the lessee at once as a place of public entertainment, the rule is different. There injury to persons other than the lessee is to be foreseen, and foresight of the consequences involves the creation of a duty. Junkermann _v._ Tilyou R. Co., 213 N. Y. 404, 108 N. E. 190, L. R. A. 1915F, 700, and cases there cited.

In this view of the defendant’s liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that “an automobile is not an inherently dangerous vehicle.” The meaning, however, is made plain by the context. The meaning is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests. Richmond & Danville R. R. Co. _v._ Elliott, 149 U. S. 266, 272, 13 Sup. Ct. 837, 37 L. Ed. 728. Under the charge of the trial judge nothing more was required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger the greater the need of caution.

There is little analogy between this case and Carlson _v._ Phoenix Bridge Co., 132 N. Y. 273, 30 N. E. 750, where the defendant bought a tool for a servant’s use. The making of tools was not the business in which the master was engaged. Reliance on the skill of the manufacturer was proper and almost inevitable. But that is not the defendant’s situation. Both by its relation to the work and by the nature of its business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been found in them.

The judgment should be affirmed, with costs.

WILLARD BARTLETT, C. J. (dissenting). The plaintiff was injured in consequence of the collapse of a wheel of an automobile manufactured by the defendant corporation which sold it to a firm of automobile dealers in Schenectady, who in turn sold the car to the plaintiff. The wheel was purchased by the Buick Motor Company, ready made, from the Imperial Wheel Company of Flint, Mich., a reputable manufacturer of automobile wheels which had furnished the defendant with 80,000 wheels, none of which had proved to be made of defective wood prior to the accident in the present case. The defendant relied upon the wheel manufacturer to make all necessary tests as to the strength of the material therein, and made no such test itself. The present suit is an action for negligence, brought by the subvendee of the motor car against the manufacturer as the original vendor. The evidence warranted a finding by the jury that the wheel which collapsed was defective when it left the hands of the defendant. The automobile was being prudently operated at the time of the accident, and was moving at a speed of only eight miles an hour. There was no allegation or proof of any actual knowledge of the defect on the part of the defendant, or any suggestion that any element of fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned judge who presided at the trial was that, although an automobile is not an inherently dangerous vehicle, it may become such if equipped with a weak wheel; and that if the motor car in question, when it was put upon the market was in itself inherently dangerous by reason of its being equipped with a weak wheel, the defendant was chargeable with a knowledge of the defect so far as it might be discovered by a reasonable inspection and the application of reasonable tests. This liability, it was further held, was not limited to the original vendee, but extended to a subvendee like the plaintiff, who was not a party to the original contract of sale.

I think that these rulings, which have been approved by the Appellate Division, extend the liability of the vendor of a manufactured article further than any case which has yet received the sanction of this court. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects, but is confined to the immediate vendee. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.

The late Chief Justice Cooley of Michigan, one of the most learned and accurate of American law writers, states the general rule thus:

“The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture or sale of such article.” 2 Cooley on Torts, (3d ed.) 1486.

The leading English authority in support of this rule, to which all the later cases on the same subject refer, is Winterbottom _v._ Wright, 10 Meeson & Welsby, 109, which was an action by the driver of a stage-coach against a contractor who had agreed with the postmaster general to provide and keep the vehicle in repair for the purpose of conveying the royal mail over a prescribed route. The coach broke down and upset, injuring the driver, who sought to recover against the contractor on account of its defective construction. The Court of Exchequer denied him any right of recovery on the ground that there was no privity of contract between the parties, the agreement having been made with the postmaster general alone.

“If the plaintiff can sue,” said Lord Abinger, the Chief Baron, “every passenger or even any person passing along the road who was injured by the upsetting of the coach might bring a similar action. Unless we confine the operation of such contracts as this to the parties who enter into them the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

The doctrine of that decision was recognized as the law of this state by the leading New York case of Thomas _v._ Winchester, 6 N. Y. 397, 408, 57 Am. Dec. 455, which, however, involved an exception to the general rule. There the defendant, who was a dealer in medicines, sold to a druggist a quantity of belladonna, which is a deadly poison, negligently labelled as extract of dandelion. The druggist in good faith used the poison in filling a prescription calling for the harmless dandelion extract, and the plaintiff for whom the prescription was put up was poisoned by the belladonna. This court held that the original vendor was liable for the injuries suffered by the patient. Chief Judge Ruggles, who delivered the opinion of the court, distinguished between an act of negligence imminently dangerous to the lives of others and one that is not so, saying:

“If A. build a wagon and sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation to build the wagon faithfully arises solely out of his contract with B. The public have nothing to do with it.... So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing, the smith is not liable for the injury.”

In Torgesen _v._ Schultz, 192 N. Y. 156, 159, 84 N. E. 956, 18 L. R. A. (N. S.) 726, 127 Am. St. Rep. 894, the defendant was the vendor of bottles of aerated water which were charged under high pressure and likely to explode unless used with precaution when exposed to sudden changes of temperature. The plaintiff, who was a servant of the purchaser, was injured by the explosion of one of these bottles. There was evidence tending to show that it had not been properly tested in order to insure users against such accidents. We held that the defendant corporation was liable notwithstanding the absence of any contract relation between it and the plaintiff “under the doctrine of Thomas _v._ Winchester, _supra_, and similar cases based upon the duty of the vendor of an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger or to take reasonable care to prevent the article sold from proving dangerous when subjected only to customary usage.”