were so hidden or concealed that a reasonably careful inspection would not have disclosed them and the dangers resulting from them. The evidence showed that the fall of the bridge was caused by defective piers and an insecure foundation. The court said that the bridge company could not have avoided knowing the character of the underlying soil and of the imperfect materials used and the improper methods employed in the construction of the foundation and the piers. The dangerous condition of the foundation was concealed by the waters above it, and the piers were defective by reason of rotten cement which was also hidden from ordinary observance. The danger in the use of the bridge was immediate, and the court said that the jury was justified in finding that within a short time after use the bridge must fall; and that the use of the bridge would be injury. and probably death to persons who would attempt to cross over it. Hence it was held that the facts established by the plaintiff made out a case for the jury on the question of negligence within the exceptions to the general rule above stated.

An exception to the general rule was recognized by this court in the case of Southern Exp. Co. v. Texarkana Water Co. 54 Ark. 131, 15 S. W. 361. In that case it was held that one who digs a trench in a public street is liable for an injury resulting from the negligent performance of the duty to restore the street to the condition it was in before the excavation, as where he fails to anticipate and provide for the natural effect of rains upon the earth excavated and replaced. In that case the rainfall came in the ordinary course of nature and displaced the newly filled earth. The defendant was bound to have known that this would be the natural consequence of its negligence in falling to properly replace the earth. The defendant knew that, if not properly replaced, the earth would sink in the street after the first rain, and thereby

create a condition that would be immediately dangerous to the traveling public, if not an actual nuisance. Hence it came within the well-recognized exception to the general rule.

In the later case of Memphis Asphalt & Paving Co. v. Fleming, 96 Ark. 442, 132 S. W. 222, Ann. Cas. 1912B, 709, the general rule itself was recognized, and the facts held to bring the case within its application. tion. In that case a construction company, under its contract with an improvement district, constructed a sidewalk along a branch without erecting a guard rail or barrier to keep travelers from stepping or falling into the branch. The foundation of the action was the negligence of the construction company in not placing a guard rail to warn travelers against danger. The court held that the facts brought the case within the general rule, and that there was no liability on the part of the construction company. The court further held that the rule does not require a formal acceptance of the contractor's work, and that the liability of the contractor will cease with a practical acceptance after the completion of the work.

We think the facts in the present case bring it within the general rule. Conceding that the flooring of the bridge was not nailed down and that the stringers were not level, it cannot be said that this defective condition made the bridge so immediately and certainly dangerous that the Canal Construction Company ought to have known that the use of it would be attended by imminent danger to those attempting to pass

over it.

In this connection we must take into consideration that one of the bents was washed out some time after the replacement of the bridge, and that the fact that the flooring was not nailed down was obvious to any one. This condition had existed for six months after the bridge had been rebuilt, and during all this time

it was being used for the purpose of hauling lumber and other materials. across it. Its defective condition was in no wise concealed from the traveling public. The Canal Construction Company in no sense had any control over it. It was not required to repair the bent which was injured by logs floating down during a freshet after the bridge had been replaced. Thus it will be seen that it was not shown that the defendant did work which was, or should have been known to be, imminently dangerous to persons who were to make use of it; nor was there a concealment of such dangerous condition.

Under the facts when considered in the light most favorable to the

L. Introductory discussion: 9.

§ 1. General doctrine, 10.

§ 2. Establishment of general doctrine by decision in Winterbottom v. Wright, 12.

3. Rationale of general doctrine,

V. continued.

§ 41. Structures appertaining to railroads, 102.

§ 42. Scaffolds and similar structures. English and Scotch decisions reviewed, 103.

§ 43. Same subject. American decisions reviewed, 104.

§ 44. Instrumentalities affording a means of passage:

a. Gangways, 107.

b. Staircases in buildings under construction, 108.

c. Ladders, 109.

§ 45. Seats, 109.

§ 46. Elevators:

a. For the carriage of pas

sengers, 110.

b. For hoisting materials or goods, 110.

§ 47. Railroad cars. English decisions, 114.

§ 48. Same subject.

American decisions concerning the remedial rights of a servant of a receiving company:

a. Injuries caused by structural defects, 117.

b. Injuries caused by improper loading, 121.

§ 49. Same subject. American decisions concerning the remedial rights of servants of shippers and consignees, 123.

$ 50. Machines, 130.

§ 51. Electricity, 131.

§ 52. Natural gas, 132.

§ 53. Horses and horse-drawn vehicles, 132.

§ 54. Goods delivered for carriage: a. English decisions, 133. b. American decisions, 136.

§ 55. Duty of person furnishing defective instrumentality to indemnify person to whom it was furnished, 136.

closely allied, to the subject of the liability of manufacturers for injuries to third persons from defects in the articles manufactured; and in some instances the judicial views of those questions herein reflected have been taken from cases of the latter

class. The specific and detailed treatment of that class of cases, however, forms no part of the present monograph, but will be found in the annotation in 17 A.L.R. 672, and 39 A.L.R. 992, so far as they involve liability of the manufacturer to the ultimate consumer who purchases from a middle

man.

$ 1. General doctrine.

"It is a fundamental doctrine of Anglo-American jurisprudence that "the only persons who can sue for the breach of a contract, or for a breach of any duty arising out of the contract, are the stipulating parties." "No rights can be acquired under a contract, except by the parties to the contract, except in certain special cases."2

"The general rule of the law is that one who is not a party to a contract cannot sue in respect of a breach of duty arising out of the contract."s

1Montague Smith, J., in Alton v. Midland R. Co. (1865) 19 C. B. N. S. 213, 144 Eng. Reprint, 768, where it was held, in a case where the negligence of a railway company had occasioned injury to a servant, that an action on the contract of carriage made between him and the company could not be maintained by his master.

"I never had any doubt of the unsoundness of the doctrine that A, employing B, a professional lawyer, to do any act for the benefit of C, A having to pay B, and there being no intercourse of any sort between B and C, if, through the gross negligence or ignorance of B in transacting the business, C loses the benefit intended for him by A, C may maintain an action against B, and recover damages for the loss sustained. There

must be privity of contract between the parties." Lord Campbell in Robertson v. Fleming (1861) 4 Macq. H. L. Cas. (Scot.) 167.

For cases illustrating the doctrine that pecuniary damage sustained by a contractor in consequence of the negligent act of a third person by which the performance of the contract is delayed or prevented does not constitute a good cause of action as against the tort-feasor, see Cattle v. Stockton Water Works Co. (1875) L. R. 10 Q. B. (Eng.) 453, 44 L. J. Q. B. N. S. 139, 33

"The ordinary rule is that an action for a breach of contract must be brought either by a party to the contract or someone for whose benefit the contract is made."4

"Whenever a wrong or injury results from the breach of a contract merely, an action for redress, whether in form ex contractu or ex delicto, can be maintained only by a party to the contract. The obligation and duty arising out of a contract are due only to those with whom it is made."5

In relation to cases belonging to the category discussed in the present monograph, this general doctrine assumes the form which is indicated by the language used in a leading New York case: "As a general rule, the builder of a structure for another party, under a contract with him, or one who sells an article of his own manufacture, is not liable to an action by a third party who uses the same with the consent of the owner or pur

L. T. N. S. 475 (place of work flooded by water); La Sociétè Anonyme de Remorquage à Helice V. Bennetts (1911) 1 K. B. (Eng.) 243, 3 B. R. C. 138, 80 L. J. K. B. N. S. 228, 27 Times L. R. 77, 16 Com. Cas. 24 (ship which was being towed was sunk by another). In the former case the court left undecided the question whether the owner of the premises with respect to which the work was being performed might, under the circumstances, have maintained the action in his own name, and recovered the amount as trustee for the contractor, on the ground that he would have had to bear this loss if the contractor had not, by his contract, indemnified him against it.

2 Malone v. Laskey (1907) 2 K. B. (Eng.) 141, 97 L. T. N. S. 324, 76 L. J. K. B. N. S. 1134, 23 Times L. R. 399-C. A.

3 Marvin Safe Co. v. Ward (1884; Sup. Ct.) 46 N. J. L. 19, Clyne v. Helmes (1898) 61 N. J. L. 358, 39 Atl. 767, 4 Am. Neg. Rep. 180, and Schutte v. United Electric Co. (1902; Sup. Ct.) 68 N. J. L. 435, 53 Atl. 204, 12 Am. Neg. Rep. 522.

* Styles v. F. R. Long Co. (1904; Err. & App.) 70 N. J. L. 301, 57 Atl. 448.

5 Davidson v. Nichols (1866) 11 Allen (Mass.) 514.

chaser, for injuries resulting from a defect therein, caused by negligence. The liability of the builder or manufacturer for such defects is, in general, only to the person with whom he contracted."

"A general rule has been adopted and has become established by repeated decisions of the courts of England and of this country, that in these cases the liability of the contractor or manufacturer for negligence in the construction or sale of the articles which he makes or vends is limited to the persons to whom he is liable under his construction or sale. The limits of the liability for negligence and for breaches of contract in cases of this character are held to be identical. The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture, or sale of the articles he handles."

Some additional statements, applicable by their specific terms either to contractors or to manufacturers, may also be quoted.

"The general rule is that the contractor, after an acceptance of the work by the owner, is not liable to third parties, who have no contractual relations with him, for damages subsequently sustained by reason of

Devlin v. Smith (1882) 89 N. Y. 470, 42 Am. Rep. 311.

"Huset v. J. I. Case Threshing Mach. Co. (1903) 61 L.R.A. 603, 57 C. C. A. 237, 120 Fed. 865.

In Hasbrouck v. Armour & Co. (1909) 139 Wis. 357, 23 L.R.A. (N.S.) 876, 121 N. W. 157, 21 Am. Neg. Rep. 430, the court made the following remarks: "But where the manufacturer or vendor had not, at the time of the injury, brought himself into any privity with the person injured within the rule of the foregoing cases, the duty which the law imposes in favor of the user or consumer upon a manufacturer or dealer selling at wholesale to dealers generally, but not selling to consumers directly, is identical with the duty imposed by law on all persons with respect to the public generally. There is no privity, no particular re

his negligence in the performance of his contract duties." ""8

"It is well settled that, except under peculiar circumstances which do not exist in this case, the independent contractor is not liable for an injury to person or to property of one not a party to the contract, occurring after the independent contractor has completed the work and turned it over to the owner or employer, and the same has been accepted by him, though the injury resulted from the contractor's failure to properly perform his contract."9

Where there is no "relation of contract between the [defendant] and the plaintiffs, the plaintiffs cannot appeal to any defect in the machine supplied by the defendants which might constitute breach of tract."10

con

"The manufacturer of a chattel owes, apart from warranty, a duty to the person to whom he contracts to sell it, to take reasonable care in the manufacture of the chattel, and that duty, being a duty created by the contract between the parties, is not a duty for the breach of which a stranger to the contract can sue."11

"Ordinarily, where a vendee accepts the purchased article, the vendor becomes, by reason of such acceptance, relieved from liability to third parties."12

lation carrying with it special duties or a special degree of care in such case." The meaning here attached to the word "privity" is, it will be observed, essentially different from that which it bears in the passage quoted in the text. Its use in any other sense than that of a term expressive of a relationship created by contract is, to say the least, uncommon, and is probably erroneous.

Casey v. Wrought Iron Bridge Co. (1905) 114 Mo. App. 47, 89 S. W. 330. 9 McCrorey v. Thomas (1909) 109 Va. 373, 63 S. E. 1011, 17 Ann. Cas. 373.

10 Dominion Natural Gas Co. v. Collins (1909) A. C. (Eng.) 640, 101 L. T. N. S. 359, 25 Times L. R. 831-P. C.

11 Blacker v. Lake & Elliott (1912) 106 L. T. N. S. (Eng.) 540 — Div. Ct. 12 Bragdon v. Perkins-Campbell Co. (1898) 66 L.R.A. 924, 30 C. Č. A. 567,