GRAY, J. By the well-settled rule of the common law, a person who negligently uses a dangerous instrument or article, or causes or authorizes its use by another person, in such a manner or under such circumstances that he has reason to know that it is likely to produce injury, is responsible for the natural and probable consequences of his act to any person injured, who is not himself in fault. The liability does not rest on privity of contract between the parties to the action, but on the duty of every man so to use his own property as not to injure the persons or property of others. The principle has been applied in a great variety of instances, and may be sufficiently illustrated by a few cases of undoubted authority.

In the leading case of Dixon v. Bell, 1 Stark. R. 287, and 5 M. & S. 198, the declaration alleged that the defendant sent a young maidservant for a loaded gun, whom he knew to be too young and an unfit person to be intrusted with the care and custody of it, and that she carelessly and improperly shot the gun at and into the face of the plaintiff's minor son, and severely wounded him, and put the plaintiff to great expenses for his cure. Upon evidence tending to prove the facts alleged, Lord Ellenborough submitted to the jury the question whether the defendant was guilty of negligence in intrusting the gun to a servant of such an age, who under all circumstances was likely to make such a use of it as a person of greater discretion would not have done; and instructed them that, if they were of opinion that the instrument in such a state ought not to have been intrusted to such a person, the plaintiff would be entitled to their verdict; and the jury returned a verdict for the plaintiff, which the court of king's bench, after argument,

refused to set aside. So the English courts have held that one who delivers an article which he knows to be of an explosive and dangerous quality to a carrier, without informing him of its nature, is responsible for any injury resulting to the ship in which it is carried, to other goods carried with it, or to the carrier's servant to whom the delivery is made. (Williams v. East India Co., 3 East, 192; Brass v. Maitland, 6 El. & Bl. 470; Farrant v. Barnes, 11 C. B. (N. S.) 553. See, also, McDonald v. Snelling, 14 Allen, 290, and cases there cited; Vaughan v. Menlove, 7 C. & P. 525, and 3 Bing. N. C. 468; Mayor of Colchester v. Brooke, 7 Q. B. 377; Longmeid v. Holliday, 6 Exch. 767, 768; Grizzle v. Frost, 3 Fost. & Finl. 622; McGrew v. Stone, 53 Penn. State, 436.)

The declaration in this case alleges, and the demurrer admits, that the plaintiff was a child eight years old, had neither experience or knowledge in the use of gunpowder, and was an unfit person to be intrusted with it; that the defendants, knowing all this, sold and delivered to him two pounds of gunpowder; and that he, in ignorance of its effects and using that care of which he was capable, exploded it, and by the explosion was severely injured. This injury was clearly, within the authorities above cited, the proximate and natural consequence of the defendants' negligence in selling a dangerous article to a child whom they knew to be, by reason of his youth and ignorance, unfit to be intrusted with it, and who probably, therefore, as they had reason to believe, might innocently and ignorantly play with it to his own injury. The case cannot be distinguished in principle from that of a man who delivers a cup of poison to an idiot, or puts a razor into the hand of an infant in its cradle. The want of any direct intention to injure does not excuse the defendants. "Every man must be taken to contemplate the probable consequences of the act he does." By Lord Ellenborough, Ch. J., in Townsend v. Wathen, 9 East, 280. It is immaterial whether the defendants had or had not a license from the municipal authorities to sell gunpowder; for no license could protect them from liability for the consequences of selling it to a person whom they knew to be incapable of taking proper care of it. The fact that the defendants by their act of negligence

obtained money from the plaintiff certainly does not tend to diminish their liability.

In the cases in which fault on the part of a child, who had not been wanting in the degree of care which could reasonably have been expected from one of his age, has been held to defeat his right to recover damages from an injury resulting to him from another's negligence, either the child was technically a trespasser, unlawfully meddling with the property of another, as in Hughes v. McFie, 2 H. & C. 744, and Mangan v. Atherton, Law Rep. 1. Exch. 239; or his parents or other persons having charge of him, with whom he was identified, had been guilty of negligence, without which the injury would not have happened. (Holly v. Boston Gas Light Co., 8 Gray, 123; Wright v. Malden & Melrose Railroad Co., 4 Allen, 283; Callahan v. Bean, 9 Allen, 401; Munger v. Tonawanda Railroad Co., 4 Comst. 349; Singleton v. Eastern Counties Railway Co., 7 C. B. (N. S.) 287.) But, in the case at bar, the declaration alleges that the child used that care of which he was capable; he did not touch the defendants' property, but property which the defendants had negligently and unlawfully sold to him; and there is nothing to show that his parents or guardians had been guilty of any negligence whatever. Suffering a boy eight years old to be abroad alone is not necessarily negligent. (Lovett v. Salem & South Danvers Railroad Co., 9 Allen, 557. See, also, Munn v. Reed, 4 Allen, 431.) Demurrer overruled.1

1 The use of a public highway as a place for exploding fireworks constitutes a nuisance, and every participant in the creation of the nuisance is responsible for its ill effects. Jenne v. Sutton, 43 N. J. L. 257, holding the president of a political club liable for damages caused by fireworks set off in the street to signalize the meeting of the club. An infant is liable for damages caused by exploding firecrackers in the street. (Conklin v. Thompson, 29 Barb. 218.) In this case it was claimed that plaintiff's horse died of sudden fright caused by the explosion of a firecracker under him.

INSURING SAFETY: PASSERS BY.

JAGER V. ADAMS.

(123 Mass. 26.-1877.)

G. O. Shattuck and J. L. Eldridge for the plaintiff.

A. A. Ranney for the defendant.

COLT, J. The plaintiff was struck by a falling brick, or part of a brick, while passing along the sidewalk in front of a building in process of erection, upon the front wall of which, in an upper story, the defendant, who was doing the mason work of the building under a contract, had men at work laying brick from the inside. The plaintiff contended that the defendant was liable for not preventing the approach of foot passengers by suitable barriers across the walk, and also for allowing his men to work in that place without protection in front, to prevent the falling of brick or other material upon the thoroughfare below.

There was evidence, consisting in part of the defendant's admissions, from which the jury might have found that the brick was dropped by one of the defendant's men, or fell off the wall at the point where they were at work. And it was possible for them to find that the immediate falling was not shown to have been due to any act which, considering the nature of the employment, could be called the negligent act of the men at work, or of any one of them. To meet this aspect of the case, the plaintiff asked the court to rule that, even if the brick fell by accident, the defendant might be liable for neglect in putting men to handle brick where a passing traveller would be liable to injury from it. The court refused this, and, while instructing the jury that the plaintiff must satisfy them that her injury was the result of fault or negligence of the defendant or of some person in his employ, also told them that, if the falling of the brick was the result of an accident, and not of any negligence of defendant's servants, he was not liable; and that the mere fact that a piece of brick fell from the building that the defendant was erecting would not

justify the jury in presuming that he was guilty of a lack of reasonable care.

But it is a matter of common knowledge and experience, that, when men are breaking and handling bricks in the construction of such a wall, some of the material may fall, although the workmen, in fitting and laying it, are in the exercise of ordinary care. The immediate cause of the fall in such case may indeed be accidental, but it is an accident which the builder of the wall, in view of the danger to life and limb, may be bound to contemplate and provide against by safeguards or barriers, so that the traveller may not be exposed to injury not to do so would be an "omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do." (Alderson, B., in Blyth v. Birmingham Waterworks, 11 Exch. 781, 784.) The jury found that the plaintiff had failed to prove that the brick which struck the plaintiff fell through the negligence or carelessness of the defendant or his agents or employees, and returned a verdict for the defendant. In view of the plaintiff's request, which sufficiently, though imperfectly, called the attention of the court to the distinctions above stated, and the instruction which was actually given as to the accidental falling of the brick, with the form of the finding by the jury, we think the jury may have misunderstood or been misled by the rulings of the court, and the entry must be

Exceptions sustained.1

1 The owner of property abutting on the highway is liable for damages caused by the falling of a rotten limb from a tree belonging to him, though standing in the street, even when he is ignorant that he owns the tree. (Weller v. McCormick, 52 N. J. L. 470.) Whether the landlord is liable for damages sustained by plaintiff's falling into a coal hole temporarily unguarded, depends upon whether he has surrendered the premises entirely to the control of tenants. (Jennings v. Van Schaick, 108 N. Y. 530.)