what kinds of property the duty exists, and what persons have the same rights as a customer. In both directions the law seems to have become, on the whole, more stringent in the present generation. With regard to the person, one acquires this right to safety by being upon the spot, or engaged in work on or about the property whose condition is in question, in the course of any business in which the occupier has an interest. It is not necessary that there should be any direct or apparent benefit to the occupier from the particular transaction (b). Where gangways for access to ships in a dock were provided by the dock company, the company has been held answerable for their safe condition to a person having lawful business on board one of the ships; for the providing of access for all such persons is part of a dock-owner's business; they are paid for it by the owners of the ships on behalf of all who use it (c). A workman was employed under contract with a shipowner to paint his ship lying in a dry dock, and the dock-owner provided a staging for the workmen's use; a rope by which the staging was supported, not being of proper strength, broke and let down the staging, and the man fell into the dock and was hurt; the dock-owner was held liable to him (d). It was contended that the staging had been delivered into the control of the ship (b) See Holmes v. N. E. R. Co. (1869-71), L. R. 4 Ex. 254, in Ex. Ch. L. R. 6 Ex. 123, 40 L. J. Ex. 121; White v. France (1877), 2 C. P. D. 308, 46 L. J. C. P. 823. (c) Smith v. London & St. Katharine Docks Co. (1868), L. R. 3 C. P. 326, 37 L. J. (d) Heaven v. Pender (1883), 11 Q. B. Div. 503, 52 L. J. Q. B. 702. Pr. 105; Cannavan v. Concklin, 1 Abb. Pr. (N. S.) 271. To illustrate, in the case of Latham v. Roach (72 Ill. 179), it was held that, individuals who hold a fair and erect structures for the use of their patrons, are liable for injury such patrons may receive by the breaking down or falling of such structures, if caused by the negligent or unskillful manner of their construction. So, a dry-dock company were held liable for splitting the sound and strong keel of a vessel, by using a hydraulic dock without employing the usual precautions. The Sappho, 44 Fed. Rep. 359. owner, and became as it were part of the ship; but this was held no reason for discharging the dock-owner from responsibility for the condition of the staging as it was delivered. Persons doing work on ships in the dock "must be considered as invited by the dock-owner to use the dock and all appliances provided by the dock-owner as incident to the use of the dock” (e). The posses Duty in respect of carriages, ships, &c. sion of any structure to which human beings are intended to commit themselves or their property, animate or inanimate, entails this duty on the occupier, or rather controller. (e) Per Cotton and Bowen L. JJ. at p. 515. The judgment of Brett M. R. attempts to lay down a wider principle with which the Lords Justices did not agree. See p. 534 above. It must be taken as a fact, though it is not clearly stated, that the defective condition of the rope might have been discovered by reasonably careful examination when the staging was put up. Carriers are required to use Duty in respect of carriages, ships, etc. ordinary and reasonable care. T. & St. L. R. v. Suggs, 62 Tex. 323; 21 Am. & Eng. R. Cas. 475; Robinson v. N. Y. etc. R., 9 Fed. Rep. 877; 20 Blatchf. 338; P., P. & J. R. v. Reynolds, 88 Ill. 418; O'Donnell v. A. V. R., 59 Pa. St. 259; C. C., C. & J. R. v. Newell, 75 Ind. 542; 8 Am. & Eng. R. Cas. 377; George v. St. Louis etc. R., 34 Ark. 613; 1 Am. & Eng. R. Cas. 294; Texas & P. R. v. Hardin, 62 Tex. 267; 21 Am. & Eng. R. Cas. 460; B. S. O. & B. R. v. Rainbolt, 99 Ind. 551; 21 Am. & Eng. R. Cas. 466; D. & W. R. v. Spicker, 61 Tex. 427; 21 Am. & Eng. R. Cas. 160; I. & G. N. R. v. Halloren, 53 Tex. 46; 3 Am. & Eng. R. Cas. 343; P. & R. I. R. v. Lane, 83 Ill. 449; Pennsylvania Co. v. Roy, 102 U. S. 451; 1 Am. & Eng. R. Cas. 225; G. R. & I. R. v. Boyd, 65 Ind. 525; T. W. & W. R. v. Beggs, 85 Ill. 80. Thus, a railroad company owes a duty to persons lawfully on their premises, and in making the access to their stations safe. Tobin v. P. S. & P. R. R. Co., 59 Me. 183. In Wendell v. Baxter (12 Gray, 494), it is held, that the owners of a private wharf owe a duty to one employed to carry the mail from a steamboat to the proprietors of which the owners of the wharf had left a part of it; and they not on the ground of any contract between them and the plaintiff, but because of the duty which the law imposed upon them to make and keep their wharf safe for all who were on it for a lawful business purpose, so long as they should permit it to be open and used. See Stratton v. Staples, 59 Me. 94; Low v. Grand Trunk Ry. Co., 72 Me. 318; Cook v. New York etc. Co., 1 Hilt. 436. Vessels are liable for improper stowage. The Rebecca, 1 Ware, 188; It extends to gangways or staging in a dock, as we have just seen; to a temporary stand put up for seeing a race or the like (f); to carriages travelling on a railway or road (g), or in which goods are despatched (h); to ships (i); to wharves, in respect of the safety of the frontage for ships moored at or approaching the wharf (j); and to market-places (k). In the case of a wharfinger he is bound to use reasonable care to ascertain whether the bed of the harbour or river adjacent is in a safe condition to be used by a vessel coming to discharge at his wharf at reasonable times, having regard to the conditions of tide, the ship's draught of water and the like. But this duty exists only so far as the river bed is in the wharfinger's possession or control (7). For although the state of the ground be not within his (f) Francis v. Cockrell (1870), Ex. Ch. L. R. 5 Q. B. 184, 501, 39 L. J. Q. B. 113, 291. The plaintiff had paid money for admission, therefore there was a duty ex contractu, but the judgments in the Ex. Ch., see especially per Martin B., also affirm a duty independent of contract. This is one of the most explicit authorities showing that the duty extends to the acts of contractors as well as servants. (g) Foulkes v. Metrop. District R. Co. (1880), 5 C. P. Div. 157, 49 L. J. C. P. 361; Moffatt v. Bateman (1869), L. R. 3 P. C. 115. (h) Elliott v. Hall (1885), 15 Q. B. D. 315, 54 L. J. Q. B. 518. The seller of coals sent them to the buyer in a truck with a dangerously loose trap-door in it, and the buyer's servant in the course of unloading the truck fell through and was hurt. (i) Hayn v. Culliford (1879), 4 C. P. Div. 182, 48 L. J. C. P. 372. (j) The Moorcock (1889), 14 P. Div. 64, 58 L. J. P. 73. (k) Lax v. Corporation of Darlington (1879), 5 Ex. Div. 28, 49 L. J. Ex. 105. (1) The Calliope '91, A. C. 11, 60 L. J. P. 28, reversing the decision of the C. A., 14 P. Div. 138, 58 L. J. P. 76, on a different view of the facts. The reasons given in The Moorcock, note (j) above, seem to be to some extent qualified by this, though the decision itself is approved by Lord Watson, '91, A. C. at p. 22. Warring v. Morse, 7 Ala. 343; Joliet S. S. Co. v. Yeaton, 29 Fed. Rep. 331; Mephams v. Biessel, 9 Wall. 320; The Excellent, 16 Fed. Rep. 148. And for unseaworthiness. Tennessee v. Fardos, 7 La. An. 28; Hackhouse v. Sneed, 1 Murph. 173; Bowring v. Theband, 42 Fed. Rep. 787; Bell v. Reed, 4 Binn. 127; 5 Am. Dec. 398; The Rover, 33 Fed. Rep. 515; West v. The Berlin, 3 Ia. 532. And for other negligence. The Barracouta, 40 Fed. Rep. 498; The Dan, 40 Fed. Rep. 691; Taylor v. Mexican G. R. Co., 2 La. An. 654; The Gloaming, 46 Fed. Rep. 671; The H. G. Johnson, 48 Fed. Rep. 696. control, it is a matter more ascertainable by him than by the shipowner. A railway passenger using one company's train with a ticket issued by another company under an arrangement made between the companies for their common benefit is entitled, whether or not he can be said to have contracted with the first-mentioned company, to reasonably safe provision for his conveyance, not only as regards the construction of the carriage itself, but as regards its fitness and safety in relation to other appliances (as the platform of a station) in connexion with which it is intended to be used (m). Where goods are lawfully shipped with the shipowner's consent, it is the shipowner's duty (even if he is not bound to the owner by any contract) not to let other cargo which will damage them be stowed in contact with them (n). Owners of a cattle-market are bound to leave the market-place in a reasonably safe condition for the cattle of persons who come to the market and pay toll for its use (o). Limits of the duty. In the various applications we have mentioned, the duty does not extend to defects incapable of being discovered by the exercise of reasonable care, such (m) Foulkes v. Metrop. District R. Co. (1880), 5 C. P. Div. 157, 49 L. J. C. P. 361. (n) Hayn v. Culliford (1879), 4 C. P. Div. 182, 48 L. J. C. P. 372. (0) Lax v. Corporation of Darlington (1879), 5 Ex. Div. 28, 49 L. J. Ex. 105 (the plaintiff's cow was killed by a spiked fence round a statue in the market place). A good summary of the law, as far as it goes, is given in the argument of Cave J. (then Q. C.) for the plaintiff at p. 31. The question of the danger being obvious was considered not open on the appeal; if it had been, qu. as to the result, per Bramwell L. J. It has been held in Minnesota (1889), that the owner of a building frequented by the public is bound not to allow a man of known dangerous temper to be employed about the building: Dean v. St. Paul Union Depot Co., 29 Am. Law Reg. 22. Limits of the duty. Supporting the text, vide Schubert v. J. R. Clark Co. (Minn.), 51 N. W. Rep. 1103; Richmond & D. R. Co. v. Elliott, 149 U. S. 266; 13 S. Ct. Rep. 837; Lindley v. Hunt, 22 Fed. Rep. 52; Bartlett v. Hoppock, 34 N. Y. 118; 88 Am. Dec. 428; Poland v. Miller, 95 Ind. 387; 48 Am. Rep. 730; Rodgers v. Niles, 11 Ohio St. 48; 78 Am. Dec. 290; Robinson Machine Works v. Chandler, 56 Ind. 575; Curtis & Co. as latent flaws in metal (p); though it does extend to all such as care and skill (not merely care and skill on the part of the defendant) can guard against (9). Again, when the builder of a ship or carriage, or the maker of a machine, has delivered it out of his own possession and control to a purchaser, he is under no duty to persons using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems) unless he had actual knowledge of its being in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care (r). Volenti non fit iniuria. Liability under the rule in Indermaur v. Dames (s) may be avoided not only by showing contributory negligence in the plaintiff, but by (p) Readhead v. Midland R. Co. (1869), Ex. Ch. L. R. 4 Q. B. 379; a case of contract between carrier and passenger, but the principle is the same, and indeed the duty may be put on either ground, see Hyman v. Nye (1881), 6 Q. B. D. 685, 689, per Lindley J. This does not however qualify the law as to the seller's implied warranty on the sale of a chattel for a specific purpose; there the warranty is absolute that the chattel is reasonably fit for that purpose, and there is no exception of latent defects: Randall v. Newson (1877), 2 Q. B. Div. 102, 46 L. J. Q. B. 257. (1) Hyman v. Nye (1881), 6 Q. B. D. at p. 687. (r) Winterbottom v. Wright, 10 M. & W. 109; Collis v. Selden (1868), L. R. 3 C. P. 495, 37 L. J. C. P. 233; Losee v. Clute, 51 N. Y. 494. (8) P. 625, above. Mfg. Co. v. Williams, 48 Ark. 325; Woodle v. Whitney, 23 Wis. 55; 99 Am. Dec. 102; Olrich v. Stohrer, 12 Phila. Rep. 199; Hoe v. Sanborn, 21 N. Y. 552; 28 Am. Dec. 163; Getty v. Rountree, 2 Pinney, 379; 2 Chand. 28; 54 Am. Dec. 130; Shatto v. Abernethy, 35 Minn. 538; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108; Gerst v. Jones, 32 Gratt. 518; 34 Am. Rep. 773; Hight v. Bacon, 126 Mass. 10; Dearborn v. Downing, 77 Me. 457; Pease v. Sabin, 38 Vt. 432; 91 Am. Dec. 364; Byers v. Chapin, 28 Ohio St. 306; Dayton v. Hoogland, 39 Id. 682; Leopold v. Van Kirk, 27 Wis. 152; Bragg v. Morrill, 24 Am. Rep. 106; Bagley v. Cleveland Rolling Mill Co., 21 Fed. Rep. 159; Eagan v. Call, 34 Pa. St. 236; 75 Am. Dec. 653; French v. Vining, 102 Mass. 132; Dickinson v. Gay, 7 Allen, 29: 83 Am. Dec. 656; Dounce v. Dow, 64 N. Y. 411. Volenti non fit iniuria. In the United States many of the authorities go further than the rule stated in the text and hold that the safety of one is not insured where risks are assumed which are either known or are so patent that by the use of observation and ordinary prudence they |