dissenting:
I dissent from that part of the majority opinion pertaining to the defendant lumber company, because I do not believe there is any evidence in the record from which the jury could have reasonably found against this defendant. In my opinion the undisputed facts show that this company did not fail to conform to any standard of conduct which has been established by this court or should now be established.
The facts upon which the jury predicated liability, stated at length in the Appellate Court opinion, are not complicated, nor are they in dispute. Briefly, the evidence shows that after the excavating had been done, the foundation had been poured, and the brick work had advanced to where it was necessary to put in the joists and the floor boards, the owners (Kriegers) notified the contracting company (defendant James Burton Company), who were to do the carpentry. The contracting company then ordered from the lumber company (defendant Maikov Lumber Company, Inc.) the necessary lumber. Pursuant to this order, the lumber company loaded the lumber on one of its trucks and delivered it to the premises. The lumber was stacked in the order which it would be used by the carpenters, that is, the joists on top and the floor boards underneath. The plaintiff concedes that the lumber was loaded and delivered in ■ accordance with the uniform practice of lumber dealers all over Chicago. The lumber company was not in possession or control of these private premises, nor was it in possession or control of the lumber at the time the plaintiff was injured.
No cases have been cited, nor have I found any, wherein the standard of conduct binding a supplier of lumber has been held to impose upon him an obligation to do any more than was done by the lumber company in this case. In this connection, the following significant points must be considered: (x) The lumber was not “inherently dangerous” to human safety in the sense those terms are ordinarily employed in cases dealing with the liability of a seller to one who may reasonably be expected to be in the vicinity of the chattel’s probable use and be endangered thereby. (2) The delivery of the lumber was done pursuant to contract, in a manner directed by the contractor and conformable to the uniform practice of lumber dealers in Chicago. (3) The injured party was a trespasser upon the premises where the lumber was delivered, and at the time of his injury the lumber company was not in possession of the premiss nor did it have any control over the lumber. It is conceded that the lumber company cannot be held liable under any application of the so-called “attractive nuisance” doctrine, inasmuch as it had no possession or control over the premises. Still, to hold the lumber company liable results, in effect, in the extension of the attractive nuisance doctrine, since the foreseeability demanded of the company is held to be much the same as that required of the possessor of the premises. I agree that this defendant had a general duty to act with reference to the plaintiff as a reasonable person would act under the circumstances; however, the acts of the defendant were not unreasonable and did not cause any unreasonable risks. The injury was not one which the defendant should reasonably have foreseen. To decide otherwise is to hold the defendant to a stricter standard than has heretofore been recognized and which, in the absence of legislation, should not be demanded of it.
The opinion of the majority makes no more definitive or particular statement of the law than a general proposition applicable to all negligence cases, namely, the defendant is required to use reasonable care under the circumstances. Nothing is spelled out relative to establishing the scope of the risk or articulating the standard of care. The following words of Mr. Justice Holmes are pertinent (from The Common Law, pages 111-2) : “Finally, any legal standard must, in theory, be capable of being known. When a man has to pay damages, he is supposed to have broken the law, and he is further supposed to have known what the law was. If, now, the ordinary liabilities in tort arise from failure to comply with fixed and uniform standards of external conduct, which every man is presumed and required to know, it is obvious that it ought to be possible, sooner or later, to formulate these standards at least to some extent, and that to do so must at last be the business of the court. It is equally clear that the featureless generality, that the defendant was bound to use such care as a prudent man would do under the circumstances, ought to be continually giving place to the specific one, that he was bound to use this or that precaution under these or those circumstances. The standard which the defendant was bound to come up to was a standard of specific acts or omissions, with reference to the specific circumstances in which he found himself. If in the whole department of unintentional wrongs the court arrived at no further utterance than the question of negligence, and left every case, without rudder or compass, to the jury, they would simply confess their inability to state a very large part of the law which they required the defendant to know * *
In sanctioning liability in this case, the court has imposed upon the defendant a standard which is vague in definition yet strict in application.
Mr. Justice Davis concurs in the foregoing dissent.