from an intermediate dealer.19 So where a chemical compound is sold as a hair wash, and it injures health.20 One who manufactures and puts upon the market a dangerously faulty article for sale must be deemed to anticipate that it will, in the ordinary course of events, come to the hands of a purchaser from some intermediate dealer, who is not likely to discover the defect, and will, be liable to anyone injured by reason thereof.21 Anyone who leaves a dangerous instrument, such as a gun, in such a way as to cause danger, or who, without warning, supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such condition to cause danger, not necessarily incident to the use of it, is liable for injury caused to others.22 If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly performed shall not suffer loss or injury by reason of negligence. The liability in such cases does not depend on the motives of the party taking upon himself the duty, but whether the legal rights of others have been violated.23

But a different principle applies in the manufacture and sale of articles or machinery not within the foregoing—that is, where it is not inherently dangerous,

19 Elkins v. McKean, 79 Pa. St. 493; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64 (naphtha).

20 George v. Skivington, L. R. 5 Ex. 1.

21 Schubert v. J. R. Clark Co., 49 Minn. 331, 32 Am. St. Rep. 559, 51 N. W. 1103.

22 Heaven v. Pender, 11 Q. B. D. 503.

23 Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 87 Am. Dec.

as well as where a thing is constructed or manufactured for a particular person and special purpose. As, for example, an elevator is constructed for another under a contract that it will lift a certain number of pounds, and it falls by reason of a defective shaft, injuring a workman in the employ of the owner, there is no duty on the part of the manufacturer to the person injured, and hence no right of action.24 And so a contractor who erects a hotel is held not liable for an injury from a defective girder which gives way.25 So is a manufacturer and vendor of a steam boiler considered liable only to the purchaser for defective materials, or for want of care and skill in its construction, and hence is not responsible for an injury to a third person from an explosion while in the hands of such purchaser.28 Nor is the vendor of a fly-wheel liable to one who buys it from his vendee, and who is injured by its flying apart during his use of it.27 So the vendor of a threshing-machine was held not liable for an injury to another than his vendee by the blowing out of a defective cylinder head.28

It must be conceded that there is some inconsistency, and perhaps some conflict in the cases enunciating the rules which we have above set forth. In the suit brought against the contractor for the faulty girder the court makes this statement: "The consequence of holding the opposite doctrine would be farreaching. If a contractor who erects a house, who builds a bridge, or performs any other work, the manufacturer who constructs a boiler, piece of ma

24 Necker v. Harvey, 49 Mich. 517, 14 N. W. 503.

25 Curtain v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220, 21 Atl. 244.

26 Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638.

27 Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 543.

28 Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. 482, 19 S. W. 630.

chinery, or a steamship, owes a duty to the whole world that his work or his machine or his steamship shall contain no hidden defect, it is difficult to measure the extent of his responsibility, and no prudent man would engage in such occupations upon such conditions. It is safer and wiser to confine such liabilities to the parties immediately concerned."29 If the boiler or the threshing-machine is not manufactured and put upon the market for the retail trade, then the cases holding to the latter view of nonliability on the part of the manufacturer are clearly distinguishable from the other class of cases where an article dangerous in character is made for the trade, and there is no conflict.

Telegraph companies owing a general duty to the public, it follows that while there is no privity between the receiver of a message and the company, such receiver may nevertheless have an action in tort against the company for the breach of this duty.3

30

If an injury is done by the omission of some duty which the defendant is under obligation to see performed, the omission to perform it fixes the liability, and the relation between the parties is immaterial.30a

§ 245. Degrees of Negligence.-The term "gross negligence" is a familiar and well-understood expression. It has long been used to characterize certain negligent conduct, viz., in those cases where only slight care or diligence is due, and the same has not been exercised. It has been defined as the want of slight diligence.31 It is said that "the degrees of negligence

29 Curtain v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220, 21 Atl. 244.

30 Ante, sec. 117.

30a Salisbury v. Erie Railroad Company, 66 N. J. L. 233, 88 Am. St. Rep. 480, 50 Atl. 47.

31 First Nat. Bank v. Graham, 85 Pa. St. 91, 27 Am. Rep. 628; Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496; Kranz v. Thieben, 15

are correlative to the degrees of care";32 that "gross negligence is an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others,"33 such as will raise a presumption of a conscious indifference to consequences.34 Gross negligence includes all lesser degrees of negligence.35 Much has been said by way of criticism of any division of negligence into degrees, and justly so, when we know that negligence is negligence wherever encountered, but, after all, it means nothing more than the absence of whatever care is requisite in the particular instance involved.36 Gross negligence is negligence with the addition of a vituperative epithet.37 The term had its origin in connection with gratuitous bailments and denotes that lesser degree of care which the law requires in such cases, and is a convenient expression to characterize conduct where slight care has not been observed, but it does not mean anything more than to say that there was a failure to exercise reasonable care under the particular circumstances. Mandataries and depositaries, being required to observe such care as men of common sense and prudence use, however inattentive they may be of their own affairs, are considered liable only for bad faith, or gross negligence, which

Ill. App. 482; Smith v. New York etc. R. R. Co., 24 N. Y. 222; Michigan Cent. R. Co. v. Carrow, 73 Ill. 348, 24 Am. Rep. 248.

32 Redington v. Pacific Postal Tel. Co., 107 Cal. 317, 48 Am. St. Rep. 132, 40 Pac. 432.

33 Id.; Coit v. Western Union Tel. Co., 130 Cal. 657, 80 Am. St. Rep. 153, 63 Pac. 83; International etc. R. R. Co. v. Cocke, 64 Tex. 151; Lord v. Midland Ry. Co., L. R. 3 C. P. 344.

34 Southern Cotton Press Co. v. Bradley, 52 Tex. 587.

35 Hays v. Gainesville St. Ry., 70 Tex. 602, 8 Am. St. Rep. 624, 8 S. W. 491.

36 Milwaukee etc. R. R. Co. v. Arms, 91 U. S. 494.

37 Wilson v. Brett, 11 Mees. & W. 113.

is an omission of slight care and diligence.38 But, as a leading author says, this fails, at this day of universal approval in our jurisprudence, to express the rule.39 "Nothing," it is said, "in general is more unsatisfactory than attempts to define and formulate the different degrees of negligence; but even where the neglect which charges the mandatary is described as 'gross,' it is still true that if his situation or employment implies ordinary skill or knowledge adequate to the undertaking, he will be responsible for any losses or injuries resulting from the want of the exercise of such skill or knowledge."40 The term "gross negligence" is scarcely susceptible of legal definition,11 and on the part of some courts there is a strong tendency to break down the impracticable distinction between what is termed gross negligence and ordinary negligence.12 In Wisconsin the word "gross" has been used in connection with negligence, to designate conduct of a more reprehensible character than mere inadvertence, such as rashness, wantonness, and recklessness of a person as regards the

38 Story on Bailments, sec. 174; Skelley v. Kahn, 17 Ill. 170; Gray v. Merriam, 148 Ill. 179, 39 Am. St. Rep. 172, 35 N. E. 810; Hibernia Bldg. Assn. v. McGrath, 154 Pa. St. 296, 26 Atl. 377, 25 Am. St. Rep. 828, and cases in note, p. 831.

39 Schouler on Bailments, sec. 35. See, also, Shearman and Redfield on Negligence, sec. 48; Redington v. Pacific Postal Tel. Co., 107 Cal. 317, 48 Am. St. Rep. 132, 40 Pac. 432.

40 Isham v. Post, 141 N. Y. 100, 38 Am. St. Rep. 766, 35 N. E. 1084; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 295, 19 Am. Rep. 181.

41 Griffith v. Zipperwick, 28 Ohio St. 388.

42 Telegraph Co. v. Griswold, 37 Ohio St. 301, 312, 41 Am. Rep. 500; Hinton v. Dibbin, 2 Ad. & E. 644; 1 Thompson on Negligence, sec. 18; Chicago etc. R. R. Co. v. Chapman, 133 Ill. 96, 23 Am. St. Rep. 587, 24 N. E. 417; Diamond State Iron Co. v. Giles, 7 Houst. 453, 11 Atl. 189; Pennsylvania R. Co. v. Sinclair, 62 Ind. 301, 30 Am. Rep. 185; Indianapolis etc. R. Co. v. McClaren, 62 Ind. 566.