HUNT, J.
A piece of machinery already made and on hand, having defects which weaken it, is sold by the manufacturer to one who buys it for his own use. The defects are pointed out to the purchaser and are fully understood by him. This piece of machinery is used by the buyer for five years, and is then taken into the possession of a neighbor, who uses it for his own purposes. While so in use, it flies apart by reason of its original defects, and the person using it is killed. Is the seller, upon this state of facts, liable to the representatives of the deceased party? I omit at this stage of the inquiry the elements, that the deceased had no authority to use the machine; that he knew of the defects and that he did not exercise proper care in the management of the machine. Under the circumstances I have stated, does a liability exist, supposing that the use was careful, and that it was by permission of the owner of the machine?
To maintain this liability, the appellants rely upon the case of Thomas v. Winchester ( 6 N.Y., 2 Seld., 397). In that case, the defendant was engaged in the manufacture and sale of vegetable extracts for medicinal purposes. The extracts were put up in jars with appropriate labels. The defendant sold the articles to Mr. Aspinwall, a druggist of New York. Aspinwall sold to Dr. Ford, a physician and druggist of Cazenovia, where the plaintiff resided. Mrs. Thomas, one of the plaintiffs, being ill, her physician prescribed for her a dose of the extract of dandelion, which is a simple and harmless medicine. The article furnished by Dr. Ford in response to this prescription was the extract of belladonna, a deadly poison. The jar from which this medicine was taken was labelled "½ lb. dandelion, prepared by A. Gilbert, 108 John St., N.Y., Jar 8 oz.," and thus labeled was sold to Dr. Ford. He relied upon the label, believed the medicine to be dandelion, and sold and delivered it to the plaintiffs as such. Mrs. Thomas suffered a severe illness by reason of this mistake. It was conceded by the counsel in that case and held by the court, that there was no privity of contract between Winchester and Thomas, and that there could be no recovery upon that ground. The court illustrate the argument by the case of a wagon built by A, who sells it to B, who hires it to C, who, in consequence of negligence in the building, is overturned and injured. C cannot recover against A, the builder. It is added: "Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder's negligence, and such negligence is not an act imminently dangerous to human life." So, if a horse, defectively shod, is hired to another, and by reason of the negligent shoeing, the horse stumbles, the rider is thrown and injured, no action lies against the smith. In these and numerous other cases put in the books, the answer to the action is, that there is no contract with the party injured, and no duty arising to him by the party guilty of negligence. "But," the learned judge says "the case in hand stands on a different ground. The defendant was a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label." "The defendant's neglect puts human life in imminent danger. Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution?"
The appellants recognize the principle of this decision, and seek to bring their case within it, by asserting that the fly wheel in question was a dangerous instrument. Poison is a dangerous subject. Gunpowder is the same. A torpedo is a dangerous instrument, as is a spring gun, a loaded rifle or the like. They are instruments and articles in their nature calculated to do injury to mankind, and generally intended to accomplish that purpose. They are essentially, and in their elements, instruments of danger. Not so, however, an iron wheel, a few feet in diameter and a few inches in thickness, although one part may be weaker than another. If the article is abused by too long use, or by applying too much weight or speed, an injury may occur, as it may from an ordinary carriage wheel, a wagon axle, or the common chair in which we sit. There is scarcely an object in art or nature, from which an injury may not occur under such circumstances. Yet they are not in their nature sources of danger, nor can they, with any regard to the accurate use of language, be called dangerous instruments. That an injury actually occurred by the breaking of a carriage axle, the failure of the carriage body, the falling to pieces of a chair or sofa, or the bursting of a fly wheel, does not in the least alter its character.
It is suggested that it is no more dangerous or illegal to label a deadly poison as a harmless medicine than to conceal a defect in a machine and paint it over so that it will appear sound. Waiving the point that there was no concealment, but the defect was fully explained to the purchaser, I answer, that the decision in Thomas v. Winchester was based upon the idea that the negligent sale of poisons is both at common law and by statute an indictable offence. If the act in that case had been done by the defendant instead of his agent, and the death of Mrs. Thomas had ensued, the defendant would have been guilty of manslaughter, as held by the court. The injury in that case was a natural result of the act. It was just what was to have been expected from putting falsely labeled poisons in the market, to be used by whoever should need the true articles. It was in its nature an act imminently dangerous to the lives of others. Not so here. The bursting of the wheel and the injury to human life was not the natural result or the expected consequence of the manufacture and sale of the wheel. Every use of the counterfeit medicines would be necessarily injurious, while this wheel was in fact used with safety for five years.
It is said that the verdict of the jury established the fact that this wheel was a dangerous instrument. I do not see how this can be, when there is no such allegation in the complaint, and no such question was submitted to the jury. "The court stated to the counsel that the only question on which they would go to the jury would be that of negligence. Whether in the manufacture and sale of this article, the defendants are guilty of negligence, which negligence produced the injury complained of." If the action had been for negligence in constructing a carriage, sold by the defendants to Collister, by him lent to the deceased, which had broken down, through the negligence of its construction, it might have been contended with the same propriety, that the finding of those facts by the jury established that a carriage was a dangerous instrument, and thereby the liability of the defendants became fixed. The jury found simply that there was negligence in the construction of the wheel, and that the injury resulted therefrom. It is quite illogical to deduce from this, the conclusion that the wheel was itself a dangerous instrument.
Upon the facts as stated, assuming that the deceased had no knowledge of the defects complained of, and assuming that he was in the rightful and lawful use of the machine, I am of the opinion that the verdict cannot be sustained. The facts constitute no cause of action.
The case contains the element, that the deceased was himself personally aware of the defects complained of. Collister testifies that he pointed them out to him, and conferred with him in relation to their effect. Instead of submitting this question of knowledge to the jury, the judge charged, "that if they find from the evidence, that the defendants made this defective wheel for use, and that it broke by reason of the defect, the defendants are liable for the defect to whoever used it." To which the defendants excepted.
The question is also presented of the effect of the circumstance, that the deceased was engaged in the use of the machine, without the permission of the owner. Having reached the conclusion, that there can be no recovery independent of these difficulties, it would not be profitable to spend time in their discussion. It is only necessary to say, that in my judgment, they are very important elements, and that, were the plaintiffs otherwise entitled to recover, they would merit the gravest consideration.
I cannot say that there was error in the charge, on the subject of negligence. It was not submitted with clearness, certainly, nor in the most appreciable form. The question is rather, what care the deceased was bound to exercise, than what negligence would be excused. The charge stated, that the "defendants were not exonerated by slight negligence on the part of the deceased, although if he had used the utmost possible care, the accident would not have happened." This is equivalent to a charge, that the deceased was not bound to use the utmost possible care, and is free from objection. The deceased was bound to exercise that care and attention in and about the business he was engaged in, that prudent, discreet, and sensible men are accustomed to bestow under like circumstances. The utmost possible care is not required. Indeed, its exercise would require an extent of time and caution that would terminate half the business of the world. ( Sheridan v. Brooklyn, 36 N.Y., 43; Wells v. Long Island, 32 Barb., 398, aff'd., 34 N.Y., 670; Button v. Hudson River Co., 28 N.Y., 258; Curran v. Warren Co., 36 N.Y., 153; Milton v. Hudson S.B. Co., 37 N.Y., 212; Owen v. Hudson River Co., 35, 516.)
The order of the General Term should be affirmed, and judgment absolute given for the defendants.
All concur. Judgment affirmed, and judgment absolute ordered for the defendants.
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