[305]. Arguments omitted.
[306]. Steel Car Forge Co. v. Chec, (C. C. A.) 184 Fed. 868; Great Southern R. Co. v. Chapman, 80 Ala. 615; Lindsay v. Cecchi, 3 Boyce, 133; Gibson v. Leonard, 143 Ill. 182; Browne v. Siegel, 90 Ill. App. 49 (aff’d on another ground, 191 Ill. 226); Presto-Lite Co. v. Skeel, 182 Ind. 593; Kidder v. Dunstable, 11 Gray, 342; Curwen v. Bofferding, 133 Minn. 28; Koch v. Fox, 71 App. Div. 288; Kuhnen v. White, 102 App. Div. 36; Ledbetter v. English, 166 N. C. 125; Dobbins v. Missouri R. Co., 91 Tex. 60; Stacy v. Knickerbocker Ice Co., 84 Wis. 614; Derouso v. International Harvester Co., 157 Wis. 32 Accord.
Compare Hartnett v. Boston Store, 265 Ill. 331, with Pizzo v. Wiemann, 149 Wis. 285; Beauchamp v. Burn Mfg. Co., 250 Ill. 303, with Berdos v. Tremont Mills, 209 Mass. 489.
[307]. In Cowley v. Newmarket Local Board, [1892] A. C. 345, 351, Lord Herschell said:
“My Lords, the question which arises in this action is whether the defendants are liable in respect of an accident which happened to the plaintiff, owing to the existence of a drop of eighteen inches in the level of a footway vested in the defendants, in consequence of which the plaintiff fell and sustained considerable injury. The difference of level in the footway arose from a carriage-way having been made for the purpose of access to Captain Machell’s stable, the yard of which adjoined the footway. This work was executed by Captain Machell in the year 1873. The plaintiff in his statement of claim asserted that the defendants had wrongfully suffered and permitted the footway to be out of repair and in a condition dangerous to passengers. It appeared clearly at the trial that there had been no misfeasance on the part of the defendants. The utmost that could be charged against them was nonfeasance. It was strongly urged at the bar that the highway including the footway being vested in the defendants, they were responsible if it was not kept in proper condition and repair to any one who was injured by reason of its not being so kept. In support of their contention they relied mainly on the 144th and 149th sections of the Public Health Act, 1875. By the former of those sections every urban authority is to execute the office of surveyor of highways, and to exercise and be subject to all the powers, duties, and liabilities of surveyors. By the latter it is provided that the urban sanitary authority shall from time to time cause all streets vested in them to be levelled, paved, metalled, flagged, channelled, altered, and repaired as occasion may require. Amongst the duties thus imposed upon the urban authority was undoubtedly the duty of keeping this highway in repair, and it is said that any person injured by the non-performance of a statutory duty is entitled to recover against the person on whom that duty rests. I entertain very grave doubts whether the proposition thus broadly stated can be maintained. The principal authority in support of it is the decision of the Court of Queen’s Bench in the case of Couch v. Steel, 3 E. & B. 402. But in the case of Atkinson v. Newcastle Waterworks Company, 2 Ex. D. 441, the late Lord Cairns and Cockburn, C. J., and the present Master of the Rolls all expressed serious doubts whether the case of Couch v. Steel was rightly decided, and whether the broad general proposition could be supported, that whenever a statutory duty is created any person who can show he has sustained injury from the non-performance of that duty can maintain an action for damages against the person on whom the duty is imposed. I share the doubt expressed by these learned judges and the opinion expressed by Lord Cairns that much must ‘depend on the purview of the Legislature in the particular statute and the language which they have there employed.’ In the case of Glossop v. Heston and Isleworth Local Board, 12 Ch. D. 102, 109, James, L. J., made some observations bearing on this point, which seem to me to be of great weight. In that case the plaintiff claimed an injunction to restrain a nuisance on the ground that the defendants had neglected to perform the statutory duty cast on them as the sanitary authority of a particular district. The learned Lord Justice said: ‘It appears to me that if this action could be sustained it would be a very serious matter indeed for every ratepayer in England in any district in which there is any local authority upon whom duties are cast for the benefit of the locality. If this action could be maintained, I do not see why it could not, in a similar manner, be maintained by every owner of land in that district who could allege that if there had been a proper system of sewage his property would have been very much improved.’ And he expressed the opinion that such a contention was not supported either by principle or authority. It is to be observed that the Highway Act, which defines the duties of surveyors of highways, prescribes the mode of proceeding when the duty of repairing the highway is unfulfilled and the liability which is then to attach to the surveyor. By sect. 94 he may be summoned before the justices, and if it appears either upon the report of a person appointed by them to view, or on their own view, that the highway is not in a state of thorough and perfect repair, they are to convict the surveyor in a penalty, and to make an order on the surveyor to repair it within a limited time; and if the repairs are not made within the time so limited the surveyor is to forfeit and pay to a person to be named and appointed in a second order a sum of money equal to the cost of repairing the highway. I think it, to say the least, doubtful whether, apart from the reason to which I am about to refer, the contention that an action lies against the local board for a breach of their statutory duty to repair the highways can be maintained.”
Sydney Municipal Council v. Bourke, [1895] A. C. 433; Maguire v. Liverpool Corporation, [1905] 1 K. B. 767 Accord. But compare Dawson v. Bingley Urban District Council, [1911] 2 K. B. 149.
Statutory duty to repair street or sidewalk, see Manchester v. Hartford, 30 Conn. 118; Kirby v. Boylston Market, 14 Gray, 249; Rochester v. Campbell, 123 N. Y. 405.
[308]. “A person who sells, gives away, or disposes of, any poison, or poisonous substance, without attaching to the vial, box, or parcel containing such poisonous substance, a label, with the name and residence of such person, the word ‘poison,’ and the name of such poison, all written or printed thereon, in plain and legible characters, is guilty of a misdemeanor.”—Minnesota Penal Code, section 329.
“No person shall sell at retail any poisonous commodity recognized as such, and especially” [here enumerating various poisons], “without affixing to the box, bottle, vessel or package containing the same, and to the wrapper or cover thereof, a label bearing the name ‘poison’ distinctly shown, together with the name and place of business of the seller.... Any person failing to comply with the requirements of this section shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than five (5) dollars for each and every such omission.”—Minnesota Laws, 1885, chap. 147, section 14.
[309]. Couch v. Steel, 3 E. & B. 402; Salisbury v. Herchenroder, 106 Mass. 458; Parker v. Barnard, 135 Mass. 116; Marino v. Lehmaier, 173 N. Y. 530; Westervelt v. Dives, 220 Pa. St. 617 Accord. Compare Nugent v. Vanderveer, 38 Hun, 487.