[288]. Eastern Tel. Co. v. Capetown Tramways Cos., [1902] A. C. 381; Midwood v. Manchester Corporation, [1905] 2 K. B. 597; Charing Cross Co. v. London Hydraulic Power Co., [1913] 3 K. B. 442, [1914] 3 K. B. 772; Brennan Construction Co. v. Cumberland, 29 App. D. C. 554 (crude petroleum in tank); Shipley v. Associates, 106 Mass. 194; Cahill v. Eastman, 18 Minn. 324; Wiltse v. Red Wing, 99 Minn. 255 (reservoir); French v. Carter Creek Mfg. Co., 173 Mo. App. 220 (stored nitroglycerine); Defiance Water Co. v. Olinger, 54 Ohio St. 532; Bradford Co. v. St. Mary’s Co., 60 Ohio St. 560 (stored nitroglycerine); Langabaugh v. Anderson, 68 Ohio St. 131 (crude petroleum in tank); Texas R. Co. v. Frazer (Tex. Civ. App.) 182 S. W. 1161 (dam); Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530 Accord. See Wing v. London General Omnibus Co., [1909] 2 K. B. 652.
“In every case of the kind which has been reported since Rylands v. Fletcher, that is, during the last 25 years, there has been a manifest inclination to discover something in the facts which took the case out of the rule. According to the English judicial system which has gone round the world with the English language and English or Anglicized institutions, the decisions of superior courts are not merely instructive and worthy of regard, but of binding authority in subsequent cases of the like sort. But there are some authorities which are followed and developed in the spirit, which become the starting-point of new chapters of the law; there are others that are followed only in the letter, and become slowly but surely choked and crippled by exceptions. This again, is independent of the considerations of local fitness which must always have weight when precedents are cited from a country remote both in place and in manners.” Pollock, Law of Fraud in British India, 53–54 (1894).
“In August, 1908, Count Z. sent one of his dirigibles from Mainz to Friederickshafen. Some motor trouble happened, and the ship was landed in a field. Thousands of people rushed to the place, so ropes were run around it, and soldiers were ordered on guard. The ship was anchored, and in addition held by forty men with ropes at the stem, and by thirty at the stern. In the afternoon a sudden thunderstorm came up, struck the dirigible, tore it loose and sent it adrift for about a mile, when it caught fire and was destroyed.
Spectators had been around all the time, and were standing outside the ropes in rows several deep. Some unfortunate person standing in the outer row near the rear gondola, was caught by the ship’s anchor, dragged into the air and carried for some distance; in the fall, one of his legs sustained such injuries that it had to be amputated.
He brought suit for damages, and was nonsuited; appealed; same result. Finally, he appealed to the Reichsgericht. It refused to interfere, for the following reasons: There being no special law governing damage by air-navigation, it becomes necessary to prove negligence on the part of the aviator or promoter. The idea that the mere undertaking of a business, acknowledged to be dangerous, carries with it responsibility for all damage caused thereby, is not law. The only duty which the hazardousness of the undertaking imposes upon the person engaged therein, is that of extra care. Otherwise, almost all kinds of transportation would be impossible.
In this case, the trip had commenced during exceptionally fine weather, which continued until after the time when the ship had been landed and anchored. Defendant had proved that on former occasions he had succeeded in landing, anchoring and holding his ship, even when the weather was unfavorable, and that the means he on such occasions had employed in keeping the ship at its moorings, were not any stronger than those employed on this occasion; in fact, they were weaker. It could not be demanded of the defendant that he should anticipate and provide against such an extraordinary violent gust of wind as tore his airship away.” 75 Central Law Journ. 311 (1912).
In Charing Cross Co. v. London Hydraulic Power Co., [1914] 3 K. B. 772, hydraulic mains under the streets burst and injured plaintiff’s cables, also laid in the streets. Lord Sumner said (pp. 779–780): “I think that this present case is also indistinguishable from Rylands v. Fletcher. Two grounds of distinction have been suggested. It is said that the doctrine of Rylands v. Fletcher is applicable between the owners of adjacent closes, which are adjacent whether there be any intermediate property or not; and that it is a doctrine depending upon the ownership of land and the rights attaching to the ownership of land, under which violations of that species of right can be prevented or punished. In the present case instead of having two adjacent owners of real property, you have only two neighboring owners, not strictly adjacent, of chattels, whose chattels are there under a permission which might have been obtained by the private license of the owners of the soil, though in fact obtained under parliamentary powers; hence the two companies are in the position of co-users of a highway, or at any rate of co-users of different rooms in one house, and Rylands v. Fletcher does not apply. The case depends on doctrines applicable to the highways, or to houses let out in tenements. I am unable to agree with any of these distinctions, though they have been pressed upon us by both learned counsel with great resource and command of the authorities. Midwood v. Manchester Corporation, [1905] 2 K. B. 597, is not decided as a case of a dispute arising between the owners of two adjacent closes. The case is treated as one between a corporation, whose business under the roadway is exactly similar to that of the defendant corporation here, and injured occupiers of the premises. If the distinction drawn between the present case and that of adjacent landowners in Rylands v. Fletcher be a good one, it either was not taken in Midwood v. Manchester Corporation or was taken and treated as of no importance. Further I am satisfied that Rylands v. Fletcher is not limited to the case of adjacent freeholders. I shall not attempt to show how far it extends. It extends as far as this case, and that is enough for the present purpose.”
See Thayer, Liability Without Fault, 29 Harv. Law Rev. 801; Bohlen, The Rule in Rylands v. Fletcher, 59 University of Pennsylvania Law Rev. 298, 373, 423; Wigmore, Responsibility for Tortious Acts: Its History, 7 Harv. Law Rev. 315, 383, 442.
Liability in case of customary or statutory duty or authority to use land as defendant did, see Madras R. Co. v. Zemindar, L. R. 1 Ind. App. 364; Green v. Chelsea Waterworks Co., 70 L. T. 547; Price v. South Metropolitan Gas Co., 65 L. J. Q. B. N. S. 126; City v. Bridgeport Hydraulic Co., 81 Conn. 84.
[289]. Argument abridged.