Odger's English Common Law

486
NEGLIGENCE.
dent of any contract. Thus, " two drivers meeting have no contract with
each other, but under certain circumstances they have a reciprocal duty
towards each other. So two ships navigating the sea. So a railway com-
pany, which has contracted with one person to carry another, hns no con-
tract with the person carried, but has a duty towards that person." 1
Again, the duty must be owed to the plaintiff, and not to
a third person. A. cannot sue B. for the breach of a private
duty which B. owed to C, even though A. has sustained
damage in consequence of it. 2
C. alone can sue for the
breach of a duty owed to himself, and he can only sue- if
damage has resulted to him from that breach. 3
It is there-
fore possible that a man may be very negligent and cause
much damage, and yet no one will be able to sue him, if the
only persons damaged are those to whom he owed no duty.
Thus, where A. employed a solicitor to draw a will for him and bade him
insert a clause leaving a legacy of £1,000 to B., and the solicitor negligently
omitted this clause from the will, it was held that B. had no cause of action ;
he had not employed the solicitor, and the solicitor therefore owed him no
duty. 4
So a telegraph company owes no duty to the addressee of a telegram. 6
Again, where mortgagees lent.money to a builder by instalments on the
strength of the certificates of a surveyor, appointed by the builder's vendor,
it was held that they had no cause of action against the surveyor when
they were damnified owing to such certificates being negligently drawn up
for they had not appointed the surveyor, and consequently he owed no duty
to them. 6
So, where the plaintiff's sheep had strayed on to the defendants' railway
and were there killed, the defendant company escaped liability, because
the sheep did not stray on to the railway direct from the plaintiff's land.
They were wrongfully on some one else's land, adjoining the railway, and
thence had strayed on to the line. The statute 8 & 9 Vict. c. 20, s. 68,
imposed, it was true, on the railway company a duty to make and main-
tain sufficient fences "for separating the land taken for the use of the
railway from the adjoining lands not taken," and "for preventing the
cattle of the owners and occupiers thereof from straying thereout," &c.
This section of the Act, however, was held not to apply under the circum-
stances, inasmuch as the plaintiff was not the owner or occupier of the
1 Per Brett, M. E., in Heaven v. Pender (1883), 11 Q. B. D. at p. 607.
2 There are one or two exceptions to this general rule, which have been dealt with
ante, p. 431.
3 See Earl v. Lubbock, [1905] 1 K. B. 253.
* Fish v. Kelly (1864), 17 C. B. N. S. 194 ; Hannaford v. Syms (1898), 79 L. T.
30.
« Playford t. V. K. Telegraph Co. (1869), L. R. 4 Q. B. 706 ; Dickson v. Renter
Telegraph Co. (1877), 2 C. P. D. 62.
» le Ltivre v. Gould, T1893] 1 Q. B. 491 ; and see Robertson, y. Flemina C1861), v
4 Macq. H. L. Cas. at p. 177.
;