condition in which oils of the same class are regularly brought to market. On the other hand, if the oil was not in such condition, but was of such a character that it would explode unless precautions unusual and unnecessary in regular business were undertaken by the purchaser; then A. by his misconduct in selling the oil in such a state is the cause of the explosion, and is penally responsible for its results. So the city of B. distributes unwholesome water which it obtains from C. under a contract made with the latter. C. is the condition of the distribution, but he is not the cause, unless the water which he supplied the city was unwholesome at the time of the supply.1 So a husband maltreats his wife, and she subsequently, when he has left her, wanders from the house and perishes in the woods. Here his maltreatment is the condition of his wife's death, but not its cause, if she leaves the house of her free will and not paralyzed by terror produced by his violence.2 § 84. Not necessary that negligence should be in violation of a contract, or the subject of civil suit. To make negligence indictable it is not necessary that it should be in violation of a contract. Wherever the defendant fails to discharge a duty imposed on him, whether this duty be by natural law, or statute, or contract, then he is indictable for injuries thus produced, provided, as has just been seen, the duty is one with which he is exclusively charged. Civil and criminal responsibility are in this view far from being convertible. On the one hand, contracts, as a general rule, cannot be made the basis of a criminal prosecution. On the other hand, there are many cases in which indictments lie (e. g. nuisance and neglect of official duty in which there is no special damage to an individual), where no civil action can be maintained. But so far as concerns homicide, we may safely say that there is no criminal responsibility where the defendant would not have been civilly liable at the suit of the party injured, had he survived the injury.5 § 85. Master answerable for servant's negligence. This sub 1 Stein v. State, 37 Alab. 123; in fra, § 360. 4 R. v. Daniel, 6 Mod. 99; R. v. Wheatley, 1 W. Bl. 273; Com. v. 2 State v. Preslar, 3 Jones N. C. Hearsey, 1 Mass. 337. 421; infra, § 366. 3 Wh. C. L. § 1003. • See remarks of Willes, J., in R. v. Birchall, 4 F. & F. 1087. ject will be hereafter independently discussed.1 One or two points bearing on negligence may be here noticed. A master is presumed to be one with the servant so far as concerns the latter's conduct in the ordinary working of the master's business; for the master's duty is in all respects to supervise the servant so as to keep the servant from invading the rights of others; and the servant's failure in this respect is the master's failure. For in all that relates to the management of the master's business the servant is to be regarded as the master's instrument; and as the master is responsible for the defective or mischievous action of his machine, so is he responsible for the defective or mischievous action of his servant. When, however, the servant leaves the orbit prescribed by his master and engages in business on his own account, then the master's responsibility ceases. We here fall back on the principle elsewhere invoked, that there must be a direct causal connection between the defendant's malfeasance or nonfeasance and the injury. The interposition of a human will acting independently of the defendant and in an eccentric orbit, or the interposition of some extraordinary natural phenomenon, breaks this causal connection.2 § 86. No defence that business was lawful. Nor is it any defence that the defendant's business was lawful. If he acts negligently, and from his negligence, as a natural, usual, and likely result, death follows, it is undoubtedly manslaughter.3 Such also is the law with regard to manufacturers and workmen; to persons having charge of children or dependents, and to officers of steam and other vessels.6 III. DANGEROUS AGENCIES.7 § 87. Negligent use of such involves responsibility. - Whoever possesses a dangerous agent must take such care of it as good 199. 2 Infra, § 362. 1 See infra, § 325 et seq. Wh. Cr. Metc. 259; Com. v. Morgan, 107 Mass. L. § 153; Com. v. Metrop. R. R. 107 Mass. 236,- -a case under a special statute making corporations indictable for negligence of servants. And see R. v. Medley, 6 C. & P. 292; Wh. Cr. L. § 2374; R. v. Dixon, 3 Maule & S. 11; Turberville v. Stampe, 1 Ld. Ray. 264; Com. v. Nichols, 10 3 Wh. Cr. L. § 1013. Infra, § 87, 135. See R. v. Bennett, Bell C. C. 1; 8 Cox C. C. 74. ❝ Infra, § 126. Infra, § 100–107. 7 Mr. Livingston, in his Report on the business men, under such circumstances, are accustomed to apply; and if from his neglecting to exercise such care death ensue Louisiana Penal Code, says, this particular form of homicide "is defined as homicide involuntarily inflicted in the performance of a lawful act, in which there is no apparent risk of life, by ordinary means; but without that care and precaution which a prudent man would take to avoid the risk of destroying human life. It will be best understood by a perusal of this division of the section. But it may here be generally comprehended by repeating one of the examples by which it is there illustrated. When death is casually inflicted by discharging fire-arms which are believed not to be loaded, without examining whether they are so or not, it constitutes this offence. If the examination be made, and owing to some unknown cause, although loaded, they appear to be empty; or, if unknown to the person using them, they have been loaded immediately after the examination, due caution has been used, and there is no offence.' A very slight punishment is annexed to this offence, and I doubted long whether, as the definition assumes the absence of any intent to injure, the horror and grief naturally caused by so fatal a consequence would not, in itself, be a sufficient punishment for the, negligence; that these sensations must inflict a suffering much more severe than any the law could with justice award, cannot be questioned. But, after much hesitation, I concluded, that this consideration would not justify me in omitting to place so fatal an act of negligence in the class of offences. It would induce us totally to excuse all negligent and even many voluntary homicides. The depravity that can conquer those feelings of remorse and mental anguish, with which nature avenges the destruction of human life, is not suddenly, easily, or frequently attained. He who, yielding to sudden passion, takes the life of an adversary who has provoked him, feels the operation of this internal engine of punishment as keenly as he does who is the negligent or even the casual instrument of a similar event. Nor is even the deliberate murderer exempt; and the poets who have painted the most closely from nature have always truly represented the subsequent remorse to augment in proportion to the previous atrocity of the murder. Richard is haunted by the ghost of his victims. Macbeth exclaims, I scarce can think on what I've done; - look on it again, I dare not;' and the reason of his tigerhearted instigator and accomplice reels under the weight of her remorse. Indeed, of the two, the homicide from sudden passion may reasonably be supposed to be endowed with keener sensations, and therefore more sensibly feel the pang of remorse, than he does who has shown so much indifference to the life of a human being as not to take the proper precautions for its preservation. Besides, the frequency of these accidents, as they are incorrectly called, seemed to demand some interposition of the law. At present they are considered and classed as excusable. But when they shall be stigmatized as offences; when the voice of the law shall direct the exercise of that circumspection which prudence now in vain commands, it is believed that greater caution will be the result; and instances are not wanting to show, that a positive inhibition, accompanied by the fear of a comparatively slight punishment, has prevented men from to another, he is liable for manslaughter. Illustrations of this principle will be given in the following sections.1 incurring risks and rushing on dangers of the most serious nature." In a note, he adds that “A traveller in Prussia during the reign of Frederick has told us, that the cavalry reviews of that great disciplinarian were at one time very much embarrassed by the dragoons frequently falling from their horses, whereby many of them had their bones broken or were trampled to death. A general order made a fall punishable with thirty-nine stripes; after which it was found that their horsemanship was so much improved that falls became very rare." 1 See also, infra, § 470, 473,479. As civil cases, illustrating the same principle, the following may be cited: 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 a damage accrued 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 had no knowledge or experience in its use, and who subsequently in 1 Dixon v. Bell, 5 M. & S. 198. 2 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. jures himself by an explosion, has been held liable for the injury; 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. 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.* 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. 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 5 8 Wellington v. Downer Ker. Oil Co. 104 Mass. 64. 4 Oil Creek, &c. Co. v. Keighron, Legal Gazette, January 9, 1874; S. C. Legal Int. January 16, 1874. 5 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. § 88. Negligent use of fire-arms and powder. Where a gentleman came to town in a chaise, and before he got out of it fired his pistols in the street, which by accident killed a woman, the offence was ruled manslaughter, the act being likely to produce danger, and manifestly improper; 1 and so is it manslaughter in the common law if one negligently discharge a gun in a public place or street, and kill one whom he does not see. Where the shooting is malicious the offence is murder.3 the plaintiff was burnt and injured by 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."" 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." 46 1 Burton's case, 1 Stra. 481. See also State v. Vance, 17 Iowa, 138. 2 People v. Fuller, 2 Parker C. R. (N. Y.) 16; Sparks v. Com. 3 Bush, 111; State v. Vance, 17 Iowa, 138. See infra, § 477; Galliher v. Com. 1 Farrant v. Barnes, 11 Com. B. 553; 31 Carney, 107 Mass. 676, citing Williams v. L. J. C. P. 137. 2 4 Mee. & Wel. 337; 7 L. J. Ex. 387. East I. Co. 3 East, 192; Brass v. Maitland, 6 E. & B. 470; Farrant v. Barnes, 11 C. B. (N. S.) 553; Parrott v. Wells, 15 Wall. 524. |
