(dissenting):
Plaintiff says that defendant, being committee of the person and property of Vera B. Ray, an adjudged incompetent, negligently intrusted to her custody a diamond ring, whereby plaintiff was damaged to the amount which it advanced in good faith to said incompetent upon the security thereof. The answer is a denial.
Vera B. Ray is the wife of defendant. In December, 1914, upon the petition of defendant, she was adjudged incompetent by reason of habitual drunkenness. The proof in that proceeding showed that “ on a great many occasions ” she had pawned or given away her jewelry and wearing apparel in order to obtain drink. She had been drinking to excess for five years prior to adjudication, and had been during that period an inmate in five different institutions for varying lengths of time. Subsequent to adjudication and down to April, 1920, she had been confined in State hospitals and private institutions on five different occasions. She was released from the latest one in March, 1920. In the intervals she lived in defendant’s borne under the charge of attendants with instructions from the doctors to treat her so far as possible as a normal person. During that period and presumably in those intervals she had on three or four occasions pawned articles of jewelry and clothing. Defendant had on each occasion promptly replevied them. It is fair to assume that he had learned there was no defense to such actions. On December 25, 1919, defendant bought a diamond ring, valued at $1,000,. and gave it to his incompetent wife. On April 2, 1920, she pledged the ring with plaintiff as security for a loan of $200. On April fifth and April twelfth following she obtained further advances of $300, making a total loan of $500. Between those dates she was away from home, her whereabouts unknown to defendant. Op the three occasions when she obtained loans from plaintiff, her appearance and conduct were apparently normal and rational. She gave plaintiff her correct name and address. Plaintiff made no investigation of her status or of her title and right to possession of the ring. Defendant subsequently recovered the ring under a judgment in replevin.
The present action was tried before a judge of the City Court of Buffalo. Plaintiff had judgment which was affirmed on appeal by the Special Term of the Supreme Court in Erie county.
*501I disagree with the conclusion reached by the majority on the appeal here. My reasons are, briefly, as follows:
To constitute actionable negligence there must be (1) a duty to the plaintiff to observe care, (2) a breach of such duty, and (3) injury suffered in consequence.
1. Whether the defendant owed a duty to the plaintiff here to observe care was at least a question of fact. The existence of such a duty is and has been time out of mind determined by the test of whether a prudent man would under the circumstances have foreseen harm to the plaintiff from a lack of reasonable care in his conduct. If he would, a duty was owing; otherwise not. (Wittenberg v. Seitz, 8 App. Div. 439; Heaven v. Pender, L. R. 11 Q. B. D. 503; MacPherson v. Buick Motor Co., 217 N. Y. 382, 389.)
The tendency of the law has been to substitute a standard of specific acts and omissions for the “ featureless generality ” of the prudent man test. By statutes and by decisions in familiar and recurring c.ases, definite standards have come into existence. (Holmes, The Common Law, pp. 111-112.) In such cases the court says as matter of law that a defendant owed a duty to do this, that, or the other thing, to give adequate warning of the approach of a train, to look before crossing a street, to pass an approaching vehicle on the right, etc. But the general test still exists and is applicable in a doubtful case. It may not be said here as matter of law that defendant was under no duty to observe care.
2. if that duty was owing to the plaintiff by the defendant, then it was for the trier of fact to determine whether or not, under all the circumstances, defendant had observed that duty.
3. Whether the injury suffered by plaintiff was the legal consequence of defendant’s negligence was likewise a question of fact.
A wrongdoer is responsible for the natural and proximate consequences of his misconduct; and what are such consequences must generally be left to the jury. (Ehrgott v. Mayor, etc., 96 N. Y. 264, 281, 282.)
The proximate consequences are those which ought to have been foreseen by a reasonably prudent man. (Perry v. Rochester Lime Co., 219 N. Y. 60, 63; Hall v. New York Tel. Co., 214 id. 49, 52.)
The reasonable and the probable seem to be in this jurisdiction the bounds of legal causation. (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 53, 54.) But within those bounds a jury might very well find that a reasonably prudent man, knowing what, defendant here knew of his wife’s tendencies, of the methods of the pawnbroking business, and of the legal consequences of those methods, would have foreseen, as likely to happen, the precise harm *502which came to plaintiff. (See Holmes, Collected Legal Papers, p. 190.)
4. Whether plaintiff exercised the requisite care for its own protection under all the circumstances, was likewise a question of fact.
Judicial notice may be taken of the general character and purposes of the pawnbroking business. The transactions are immediate and generally under the urge of dire necessity. In the absence of anything to put the broker on inquiry, failure to investigate the title is not necessarily negligence.
While the facts here are novel, the principle involved is not. I think it was applied by this court in Schulz v. Morrison (172 App. Div. 940, affg. 91 Misc. Rep. 250), and in Tarbox v. Thompson (191 App. Div. 933) (parent negligent in permitting child under eighteen years of age to use automobile, causing injury to plaintiffs). See, also, Binford v. Johnson, 82 Ind. 426 (defendant sold pistol cartridges to boys, knowing dangerous character of articles, and that boys were unfit to have them; plaintiff’s intestate killed by discharge of pistol in hands of a younger brother who had found it on the floor); Cluthe v. Svendsen, 9 Ohio Dec. 458 (father may be liable for death of plaintiff’s young daughter, killed by defendant’s demented and dangerous son, seven years old, if he knew son’s condition,' and knowingly permitted him to be at large unwatched); Meers v. McDowell, 110 Ky. 926 (father liable for permitting an incompetent son to handle loaded gun, if he knew or should have known the danger in the exercise of ordinary care); Theroux v. Carrier, 21 Quebec Sup. Ct., 156; Whitesides v. Wheeler, 158 Ky. 121 (substantially to the same effect as foregoing cases; insane sons of full age living at home caused injuries to plaintiffs); and Kusah v. McCorkle, 100 Wash. 318 (sheriff failed to search insane prisoner, who stabbed plaintiff, a fellow prisoner; for the jury under the facts).
A $1,000 diamond ring in the hands of defendant’s wife was an instrument as potentially dangerous to the property of pawnbrokers as were the automobiles, guns, pistols and knives in the above cases to the persons of those injured thereby.
The order of the Special Term and the judgment of the City Court of Buffalo should be affirmed.
Sears, J., concurs.
Judgment [order] of Special Term and judgment of Buffalo City Court reversed on the law and complaint dismissed, with costs in all courts to the appellant.