NOTES. 225 In this case, ati action of tort for the fall of the chimney of a planing mill, caused by a heavy but not unusual gale, the lower court had charged that the ordinary rule of negligence was the test of liability. On excep- tions to this charge, the upper court sustained the exceptions, and decided that, whatever the rule was, it was not the ordinary unqualified rule of due care. In the lower court, it appears, the plaintiff had requested in- structions, which roughly but practically embodied the modified doctrine of Fletcher v. By lands now prevailing in England (5 H. L. R. 186, note i). As this doctrine was, however, considered by the upper court as giving the plaintiff more than he was entitled to, the question naturally arises, since both the ordinary rule of negligence and that of Fletcher v. Rylands (a case nowhere expressly mentioned in the decision) appear equally wrong, what is the correct test in the present case? On this point the court's views are decidedly ambiguous. In one place it seems to ap- proach the " ordinary care " rule, in another to adopt a sort of modified Fletcher v. Rylands rule, in which the defendant is not hable for latent defects which no human foresight could reasonably be expected to an- ticipate or prevent ; in short, after destroying much, the court constructs nothing. VVhat, then, is this case to stand for? Some light is shed upon this point by the authorities cited. The long line of Massachusetts cases, and the fact that some English decisions are also relied upon, might well lead one to regard the attitude of the court as significant of an unwilling deference to what it could not easily disre- gard. It does not look Fletcher v. Fylands squarely in the face. If it approaches that peculiar case at all, it is only by being dragged back- wards in its direction ; if it adopts it at all, it is only with such sweeping qualifications as to reduce that doctrine to hardly more than that of those cases where, though the want of due care is a necessary element of liability, the mere occurrence of the accident is held to raise a presumption of negli- gence. It would seem, moreover, that the court's citation of Pollock on Torts, 393, 394, which is practically an authority for the view last mentioned, expresses a strong leaning that way. In any case, the decision bodes ill for the future of Fletcher v. Rylands^ in Massachusetts at least. Laidlaw v. Russell Sage (The Dynamite Case) goes to a Third Trial. — The Supreme Court of New York, General Term, on October 13th, reversed a judgment of the Circuit Court which had been rendered in favor of the plaintiff in the case of Laidlaw v. Sage, and ordered the case to a third trial (30 N. Y. Sup. 496). In the Harvard Law Review for January, 1894, the opinion of the Supreme Court in this same case, reversing a judgment of the Circuit Court and ordering the case to its second trial, was noticed, the circumstances of the case were stated, and it was suggested that the dis- cussion of the " burden of proof" by the Supreme Court seemed not wholly satisfactory. That suggestion appears to have been justified by the fact that Mr. Justice Patterson of the Circuit Court, at the second trial, was so far misled that he read to the jury an extract from the opinion of the General Term, the effect of which was to charge that the plaintiff was entitled to a recovery unless the defendant should show that the plaintiff's injuries would have been as serious as they were if he had not been interfered with. The Supreme Court now say clearly that this charge was erroneous, and a misrepresentation of their conception, which
