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INTERNATIONAL CASES, ARBITRATIONS AND INCIDENTS ILLUSTRATIVE OF IN
TERNATIONAL LAW AS PRACTISED BY INDEPENDENT STATES. By Ellery C. Stowell and Henry F. Munro. Volume Two. Boston: Houghton Mifflin
Company. pp. xvii, 662. BELGIUM'S CASE: A JUDICIAL ENQUIRY. By Ch. De Visscher. Translated
from the French by E. F. Jourdain. London: Hodder & Stoughton. 1916. pp. xxiv, 164.
"HE field for a doctrine depending on the extra-hazardous
character of the undertaking "is narrow at the best; the line between the danger which calls for care and the 'extra' hazard is hard enough to draw.” 1
“While it is difficult to frame an affirmative definition of extra hazard, it is safe to assert (negatively) that certain circumstances do not constitute a test of extra hazard. The test of extra hazard is not merely that there is a possibility of serious harm resulting. That is true of all occupations. Nor merely that there is a probability of harm resulting from an occupation, unless it is conducted with reasonable care. That, again, is true of occupations in general.” 2
There are, as yet, no unanimously approved rules or criteria whereby to determine whether a particular user or act falls under this head of acting at peril. The highest English court some fifty years ago, in Rylands v. Fletcher, undertook to lay down the so-called Blackburn Rule.
Before stating this rule, or considering its correctness, it should be said that, according to the weight of modern authority, it was unnecessary in that case to decide whether the defendants could
· Professor E. R. Thayer, 29 Harv. L. Rev. 811.
27 Harv. L. REV. 349, n. 15, giving further instances which do not constitute tests. • L. R. 3 H. L. 330, 339-40 (1868).
be held liable irrespective of negligence. It would seem that the same result (judgment for plaintiff) could have been reached on the ground that the defendants were legally chargeable with negligence. True, the defendants personally were guiltless of negligence. But the engineer and contractors employed by them were negligent; and for the negligence of these persons the defendants were responsible. The duty resting upon the defendants in that case could not be discharged by delegating it to an independent contractor. (As to this last proposition there is some conflict, but the weight of modern authority is strongly in favor of it.) The view that Rylands v. Fletcher could have been decided on the ground of negligence is supported by Bishop, Street, Bohlen, and Pollock.
In Rylands v. Fletcher, the following formula, enunciated by Blackburn, J., in the Exchequer Chamber in 1866, was approved by the House of Lords in 1868:
“We think that the true rule of law is, that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape.” 5
Although the learned judge puts the qualification“ primâ facie" before “answerable,” yet the context, and indeed the entire opinion, shows that he did not think that the so-called primâ facie liability could be rebutted by proving that the defendant used all possible care. It is quite apparent that he thought of only two possible methods whereby defendants could escape liability, viz., “by showing that the escape was owing to the plaintiff's default," "or perhaps that escape was the consequence of vis major or the act of God.”
Nothing can be more general or sweeping than the word "anything” standing alone. Here it is qualified or limited only by the words "likely to do mischief if it escapes.” Notice what this rule does not contain. The application of the rule is not restricted to
• BISHOP, Non-CONTRACT LAW, 8 839; STREET, FOUNDATIONS OF LEGAL LIABILITY, 62, 63; Professor Bohlen, 59 U. PA. L. REV. 299, n. 2; Pollock's Editorial Preface to 143 REVISED REPORTS V, vi. Pollock adds: “Moreover the case was of the class where 'res ipsa loquitur.'
6 Blackburn, J., L. R. 1 Exch. 265, 279 (1866), approved in L. R. 3 H. L. 330, 339-40 (1868).
anything “likely to escape," or to anything “having a tendency to escape of itself,” or to “a substance likely to escape despite the utmost care to confine it.” Nor is absolute liability limited to “unusual and extraordinary uses which are fraught with exceptional peril to others.” It is not required that the thing brought upon the land should be some article which owners are not accustomed to bring on their land. The rule makes no exception as to things reasonably necessary to the ordinary beneficial use and enjoyment of the land.6
It should, perhaps, be mentioned here that Lord Cairns, while indorsing Blackburn, gave also a test of his own, which is briefly referred to in the note below.7
The Blackburn Rule has not met with universal and cordial approval by English lawyers.
In the Preface to the fourth edition of Salmond on Torts (dated November, 1915), the learned author, speaking of cases of absolute liability for accidental harm, says:
“... The scope and limits of these exceptional rules still remain covered with doubt and darkness. This is more especially so with the
• Some jurists, who have undertaken to state the principle upon which cases like Rylands v. Fletcher rest, have put the requirements much higher than in the Blackbum test. Thus, Knowlton, J., in Ainsworth v. Lakin, 180 Mass. 397, 399 (1902), uses the expressions “things which have a tendency to escape, and do great damage”; "unusual and extraordinary uses of property”; “unwarrantable and extremely dangerous uses of property.” So Dr. Kenny, in the headnote prefixed to Rylands v. Fletcher, in his CASES ON TORTs, p. 600, asserts that the landowner is liable the escape of “any extraordinary source of danger which he has brought upon his land.”
In Rickards v. Lothian, (1913) A. C. 263, 280, Lord Moulton, in deciding "that the present case does not come within the principle laid down in Fletcher o. Rylands," says: “It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.”
? Rylands o. Fletcher, L. R. 3 H. L. 330, 339 (1868). It has sometimes been understood that the Cairns test was intended as a substitute for the Blackburn test, but Professor Bohlen thinks that Lord Cairns then intended to lay down a rule "as to how far acts, primâ facie actionable, may be justified because done by the defendant in the course of his use of his land for his own purpose.” See 59 U. PA. L. Rev. 302– 04. The Cairns test is that of natural or non-natural use of his land by the defendant. Lord Cairns appears to describe a non-natural use as a use" for the purpose of introducing into the close that which in its natural condition was not in or upon it.” Taking the term “non-natural user” as interpreted by Lord Cairns, the test has been subjected to very destructive criticism. The criticisms of Doe, J., in 53 N. H. 442, 448 (1873), have never been satisfactorily answered. See also SALMOND, TORts, 4 ed., 225, 229, 8. 15, and Mr. Gest, 33 Am. L. REG. (N. S.) 101-04.
rule established by the decision of the House of Lords in Rylands v. Fletcher in 1866 (1868?). No decision in the law of torts has done more to prevent the establishment of a simple and uniform system of civil responsibility, and its true meaning and limitations remain to this day the subject of dispute and uncertainty."
Sir Frederick Pollock has frankly said that he does not "like" Rylands v. Fletcher, and that the rule in that case "seems needlessly harsh." In his draft of an Indian Civil Wrongs Bill, section proposes a provision, that a person keeping dangerous things is bound to take all reasonably practicable care to prevent harm, and is liable as for negligence to make compensation for harm, unless he proves that all reasonable practicable care and caution were in fact used. In his work on Torts,10 he says:
one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure diligence in proportion to the manifest risk, . . . and throwing the burden of proof on him in cases where the matter is peculiarly within his knowledge."
He also regrets that he cannot concur in certain views of Mr. Salmond, which would prevent the application of Rylands v. Fletcher to any case except that of actual negligence."
"The extent of the exceptions made in later decisions shows" that the rule in Rylands v. Fletcher "is accepted with reluctance."' 12 In later cases "there has been a manifest inclination to discover something in the facts that took the case out of the rule." 13
11 See POLLOCK, TORTS, 10 ed., 511 n. (m.), and Editorial Preface to 143 REVISED REPORTS V, vi.
12 POLLOCK, TORTS, 10 ed., 671, n. (s.). It has been decided that the rule in Rylands v. Fletcher does not apply to damage of which the immediate cause is the act of God (or vis major). Nichols v. Marsland, L. R. 10 Exch. 255 (1875); 2 Exch. Div. 1 (1876). It has also been held not to apply "where the immediate cause of damage is the act of a stranger." Box v. Jubb, 4 Exch. Div. 76 (1879).
In 8 HARV. L. REV. 389, Professor Wigmore says: "This sub-principle of 'acting at peril,' it must be added, has certain general limitations; and a special group of cases attempt to determine how far extraordinary catastrophes or the acts of third persons relieve from responsibility one who would ordinarily be 'acting at peril.'" Compare POLLOCK, TORTS, 6 ed., 475-76.
13 See POLLOCK, TORTS, 9 ed., 661, notes, and 503, n. (m.); POLLOCK, LAW OF FRAUD IN BRITISH INDIA, 53-54; E. R. Thayer, 5 HARV. L. REV. 186, n. 1; Lord Moulton, in Rickards v. Lothian,  A. C. 263, 280-81. For a similar tendency in an American