defendants to use reasonable care and diligence, and I think the brick being too loose affords, prima facie, a presumption that they had not used reasonable care and diligence. It is true that it is possible that, from changes in the temperature, a brick might get into the condition in which this brickwork appears to have been from causes operating so speedily as to prevent the possibility of any diligence and care applied to such a purpose intervening in due time, so as to prevent an accident. But, inasmuch as our experience of these things is that bricks do not fall out when brickwork is kept in a proper state of repair, I think, where an accident of this sort happens, the presumption is that it is not the frost of a single night, or of many nights, that would cause such a change in the state of this brickwork as that a brick would fall out in this way; and it must be presumed that there was not that inspection and that care on the part of the defendants which it was their duty to apply." Mr. Justice Hennen dissented, and the case was carried to the Exchequer Chamber, where the judgment of the majority below was unanimously affirmed. Law R. 6 Q. B. 759. In Mullen v. St. John, 57 N. Y. 567, it was decided that the fall of a building into the street was presumptive evidence of a neglect of proper care on the part of the owner. The court said that a person who erected a building upon a city street or upon an ordinary highway was under legal obligation to take reasonable care that it should not fall into the street; and buildings properly constructed did not fall without adequate cause. If no tempest or other external violence prevailed, the fair presumption was that the fall occurred through the ruinous condition of the building, which could scarcely have escaped the notice of the owner. The case was decided chiefly upon the authority of Kearney v. London & Brighton Railway Co., supra. See further, as to the duty to repair, Kirby v. Boylston Market Association, 14 Gray, 249; Lowell v. Spalding, 4 Cush. 277; Oakham v. Holbrook, 11 Cush. 299; Regina v. Watts, 1 Salk. 357; Rector v. Buckhart, 3 Hill, 193. In Lehman v. Brooklyn, 29 Barb. 234, an action was brought against a city for negligently causing the death of a young child. The proof was that the city kept a well, the mouth of which was level with the sidewalk. The well was in the sidewalk, but two or three feet from the flagging. It was provided with a cover, having a lid opening on hinges. And the child was found in the well. It was held that the plaintiff could not recover. The Supreme Court of Wisconsin have held that the law will not presume negligence from the mere fact that a person injured in passing over a defective highway had frequently passed over it and knew of its condition. Kavenaugh v. Janesville, 24 Wis. 618. See Maguire v. Middlesex R. Co., 115 Mass. 239. This presumption of negligence from the mere happening of an accident — where res ipsa loquitur—often arises in injuries sustained by railway, steamboat, and stage-coach companies. In Stokes v. Saltonstall, 13 Peters, 181, s. c. below, Taney, 11, a leading case in this country, it was held that in an action against the proprietor of a stagecoach, the fact that the stage was upset and the plaintiff injured was sufficient to raise a presumption of negligence or want of skill in the driver, and to shift upon the defendant the burden of proving that the driver was in every respect qualified, and acted with reasonable skill premises is also treated as a narrow one, and with the utmost caution. This doctrine had previously been laid down by Mansfield, C. J., in Christie v. Griggs, 2 Campb. 79. As to injuries occurring from steamboats, an act of Congress, affirming what seems to be the common law, declares that in all suits and actions against proprietors of steamboats, for injuries arising to persons or property from the bursting of the boiler of any steamboat, the fact of such bursting shall be taken as prima facie evidence, sufficient to charge the defendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him or those in his employment. 5 U. S. Stat. at Large, 306. See McMahon v. Davidson, 12 Minn, 357, 371. But the above are cases of contract, and they need not be further considered. In Ellis v. Portsmouth & Roanoke R. Co., 2 Ired. 138, the plaintiff sued the defendants for having negligently caused the burning of his fence, standing along the line of their railroad; and the Supreme Court held that when the plaintiff shows damage resulting from the defendants' act, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence, such as can only be repelled by proof of care or of some extraordinary accident, which renders care useless. And the same court repeated this rule in Herring v. Wilmington & Ral. R. Co., 10 Ired. 402. (As to what is sufficient evidence to connect the defendants with the plaintiff's loss in the case of a building burned down near a railroad track, see Sheldon v. Hudson River R. Co., 14 N. Y. 218.) The presumption as to the extent of the charge over articles on the occupant's at least in England. Thus, in Higgs v. Maynard, 12 Jur. N. s. 705, it appeared that the defendant was possessed of a workshop, the windows of which overlooked a yard in which the plaintiff was at work for another. A ladder in the defendant's workshop (a coffee-roasting establishment) fell through one of the windows, and the fragments of the glass in falling injured the plaintiff's eye. It was held that the plaintiff could not recover without proving that the ladder was under the control of the defendant. So, too, Cockburn, C. J., has observed, in a case already cited (Welfare v. London & Brighton Railway Co., Law R. 4 Q. B. 693), that the court will not presume that a man engaged in repairing the roof of a building in a great city is in the employ of the owner of the building, for it is a matter of general knowledge that repairs in such cases are undertaken by builders or contractors. (Railway companies are, of course, liable for injuries caused by the negligence of contractors after the work of the contractor has been accepted. See post.) In the Superior Court of New York City a different rule has been maintained. It has there been decided that the fall of a piece of wood from a building in New York belonging to the defendant, though at the time the building was undergoing alterations, is sufficient to raise a presumption of liability against the owner. The court thought that the principle was that when an injury was caused by the negligence of some person unknown, and such injury was inflicted through the instrumentality of property owned by the defendant, such ownership was alone sufficient, prima facie, to charge such owner with negligence. Clare v. National City This rule was not in application limited Bank, 1 Sweeny, 539. It has also been held in New York, in an action for death caused by a runaway team, that as the ownership of personal property draws to it the possession, it will be assumed that a person in charge of a horse and wagon of which the defendant is owner is in the service of the defendant; and this, too, though the supposed servant was at the time of the accident engaged in a business which appeared to be that of another person. Norris v. Kohler, 41 N. Y. 42. See Svenson v. Atlantic Steamship Co., 57 N. Y. 108. But of course the horse must have been under the control of the owner or of his servant; otherwise, whether he be let for hire or gratuitously, and but for a short time, the owner will not be liable. Herlighy v. Smith, 116 Mass. 265. The Roman law contained some interesting provisions upon this subject, which still prevail in France, being in some respects like our own law, in others going beyond it. Domat, stating the Roman and French law, says that he who inhabits a house, whether he be the proprietor of it, tenant, or other, is liable for the damage which is caused by any thing thrown out or poured out of any place of the said house, whether by day or by night; and this, too, whether he himself threw it out, or any of his family or domestics, though in his absence and without his knowledge. to streets, squares, and other public places, but extended to all places where the act occurred. If a man was killed or wounded, the person who did the act was liable to a criminal prosecution, and the master of the house to a fine. If several persons inhabited the same place whence any thing had been thrown or poured out, all were liable, unless it could be known who had done the act. And if the master (owner or chief tenant) of the house occupied only a small part of it and let chambers, or lodged friends in some of them, he was answerable for the act of the person whom he received into his house. But if it should appear out of what room the thing had been thrown, the action might be brought either against the person who was lodging in the room, or against him who had the whole house; and the last would then have recourse against the other. If any thing were hung out from a building whence the fall of it might do injury, he was liable to the public, and, if damage were done, to a further penalty to the person hurt. If tiles fell from a house which was in good condition, the fall being caused by a storm, the proprietor or tenant was not liable. But if the roof was in a bad condition, he who was bound to keep it in repair might be liable to make good the damage that had happened, according to circumstances. Domat, liv. 2, tit. 8, § 1 (Cushing's ed.). THOMAS et ux. v. WINCHESTER. (6 N. Y. 397. Court of Appeals, July, 1852.) Mistake in Label of Drug. The defendant, by the negligence of his agent, sold a quantity of belladonna, a poisonous drug, put up and labelled as extract of dandelion, a harmless medicine, to A., a druggist, who again so sold it to F., another druggist, who so sold it to the feme plaintiff, to whom it was administered as dandelion. Held, that the defendant was liable for the injury thereby caused. THE case is stated in the opinion of the court. Charles P. Kirkland, for appellant, defendant below. N. Hill, Jr., for respondents. RUGGLES, C. J., delivered the opinion of the court. This is an action brought to recover damages from the defendant for negligently putting up, labelling, and selling as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison; by means of which the plaintiff, Mary Ann Thomas, to whom, being sick, a dose of dandelion was prescribed by a physician, and a portion of the contents of the jar was administered as and for the extract of dandelion, was greatly injured, &c. The facts proved were briefly these: Mrs. Thomas being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison County, where the plaintiffs reside. A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered, however, after some time, from its effects, although for a short time her life was thought to be in great danger. The medicine administered was belladonna, and not dandelion. which it was taken was labelled "lb. dandelion, prepared by A. Gilbert, No. 108 John Street, N. Y. for and believed by Dr. Foord to be the The jar from Jar, 8 oz." It was sold extract of dandelion as labelled. Dr. Foord purchased the article as the extract of dan delion from James S. Aspinwall, a druggist at New York. Aspinwall bought it of the defendant as extract of dandelion, believing it to be such. The defendant was engaged at No. 108 John Street, New York, in the manufacture and sale of certain vegetable extracts for medicinal purposes, and in the purchase and sale of others. The extracts manufactured by him were put up in jars for sale, and those which he purchased were put up by him in like manner. The jars containing extracts manufactured by himself and those containing extracts purchased by him from others were labelled alike. Both were labelled, like the jar in question, as "prepared by A. Gilbert." Gilbert was a person employed by the defendant at a salary, as an assistant in his business. The jars were labelled in Gilbert's name because he had previously been engaged in the same business on his own account at No. 108 John Street, and probably because Gilbert's labels rendered the articles more salable. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not manufactured by the defendant, but was purchased by him from another manufacturer or dealer. The extract of dandelion and the extract of belladonna resemble each other in color, consistence, smell, and taste, but may, on careful examination, be distinguished the one from the other by those who are well acquainted with these articles. Gilbert's labels were paid for by Winchester, and used in his business with his knowledge and assent. The defendant's counsel moved for a nonsuit on the following grounds : 1. That the action could not be sustained, as the defendant was the remote vendor of the article in question, and there was no connection, transaction, or privity between him and the plaintiffs, or either of them. 2. That this action sought to charge the defendant with the consequences of the negligence of Aspinwall and Foord. 3. That the plaintiffs were liable to and chargeable with the negligence of Aspinwall and Foord, and therefore could not maintain this action. 4. That, according to the testimony, Foord was chargeable with negligence, and that the plaintiffs therefore could not sustain this suit against the defendant; if they could sustain a suit at all, it would be against Foord only. 5. That this suit, being brought for the benefit of the wife, and |