
    WOHLFAHRT v. BECKERT.
    
      N. Y. Court of Appeals ;
    
    June, 1883
    Negligence in Dispensing Poison.—Cause op Action on Act Violating Statute.—Trial ; improbability op Testimony op Interested Witness a Question for tub Jury.
    Conceding that it is a misdemeanor punishable by the criminal law to sell or furnish poison without a proper label, so doing does not render one liable in damages to the person injured, if it appear that before delivering it, he fairly and fully warned him that the substance was poison.
    
    The doubt arising on improbable or suspicious testimony of a party-testifying as a witness in his own behalf, raises a question of fact which ought to be submitted to the jury.
    
    Appeal from a judgment reversing a nonsuit and an order granting a new trial.
    Mary Woiilfahrt sued Charles A. Beckert for damages for negligence in furnishing to the plaintiff’s intestate a poison unlabeled, the taking of which in an excessive dose caused his death. The details appear in the opinion.
    
      W. C. De Witt, for defendant appellant.
    
      Samuel Greenbaum, for plaintiff respondent.
    
      
       This case is akin to some others which hold that the violation of a statute does not, of itself, give a right of action to the person injured, irrespective of negligence or other wrong, which might be a cause of action independent of the statute.
      For recent cases illustrating the subject, and the qualifying rules that a statute or ordinance may protect a person otherwise unprotected; and be relevant to the question of negligence, see Parker v. Barnard (Mass. May, 1883), 17 Cent. L. J. 166; Fillo v. Jones, 2 Abb. Ct. App. Dec. 121; Salisbury v. Herchenroder, 106 Mass. 458; Jenks v. Williams, 115 Id. 217; Blanchard v. Western Union Tel. Co., 60 N. Y. 510; Briggs v. N. Y. Central, &c. R. R. Co., 72 Id. 26; Chicago, &c. R. R. Co. v. Engle, 58 Ill. 381; Toledo, &c. R. R. Co. v. O’Connor, 77 Id. 391; St Louis, &c. R. R. Co. v. Mathias, 50 Ind. 65; Madison, &c. R. R. Co. v. Taffe, 37 Id. 361; Western Union Tel. Co. v. Eyser, 2 Col. 141; Dodge v. Burlington, &c. Co., 34 Iowa, 276; Jackson v. Chicago, &c. R. R. Co., 36 Id. 451; Messenger v. Pate, 42 Iowa, 443; Toledo, Peoria, &c. R. R. Co. v. Deacon, 63 Ill. 91; Pennsylvania Co. v. Hensel, 70 Ind. 569; Texas, &c. R’y Co. v. Murphy, 46 Tex. 356.
    
    
      
       Upon the same principle it is error to direct a verdict or nonsuit solely upon even the unoontradicted testimony of the party in whose favor the direction is given. Stilwell v. Carpenter, 2 Abb. N. C. 238.
    
   Finch, J.

Whether this case should have ' been submitted to the jury depends upon the inquiry whether the testimony of the defendant’s clerk is to be taken as the truth of the transaction, or may be questioned or doubted. If he is to be believed, the druggist who sold the poison was guilty of no wrong or negligence toward the deceased, for he warned him that the 4 ‘ black drops ” asked for was a strong poison, of which he should only take ten or twelve drops for a dose. Notwithstanding the warning, he took probably ten times the prescribed quantity in reliance upon the previous statement of the peddler, Silverstein, that he had taken half a glass of what he called “ black draught,” and it had cured him. On such a state of facts a verdict against the defendant would not be justified. Although no label marked “poison ” was put upon the vial, and, granting that by such omission the defendant was guilty of a misdemeanor, and liable to the penalty of the criminal law, still that fact does not make him answerable to the customer injured or his representative, in case of his death, for either a negligent or wrongful act, when toward that customer he was guilty of neither ; since he fairly and fully warned him of all and more than could have been made known by the authorized label.

A statute requires the ringing of the bell or sounding of the whistle by an engine approaching a railroad crossing; but one who sees the train coming has all the notice and warning which these signals could give, and though they are omitted, takes the risk of the danger which he sees and knows, if he attempts to cross in front of the train (Pakalinksky v. N. Y. Central, &c. R. R., 82 N. Y. 424; Connelly v. N. Y. Central, &c. R. R., 88 N. Y. 346). So here, if the warning was in truth given, if the deceased was cautioned that the medicine sold was a strong poison, and but ten or twelve drops must be taken, he had all the knowledge and all the warning that the label could have given, and could not disregard it, and then charge the consequences of his own negligent and reckless act upon the seller of the poison. But if no such warning was in fact given, its omission was negligence, for the results of which the vendor was liable both at common law and by force of the statute (Thomas v. Winchester, 6 N. Y. 397, 409 ; Loop v. Litchfield, 42 N. Y. 351, 358 ; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; 4 R. S. [6th ed.] chap. I, title 6, p. 973, § 25).

By the statute it is made a misdemeanor for any person to sell “any arsenic, corrosive sublimate, prussic acid, or any other substance or liquid usually denominated poisonous without having the word 6 poison ’ written or printed upon a label attached to the vial, box or parcel in which the same is so sold.”

The liquid sold to the deceased was in fact a poison, and death resulted from taking a trifle less than the quantity sold. The evidence showed that.the black drops in both forms of preparation was “ deadly,” and that it was usually denominated poisonous, is to be inferred both from its well-known character and from the evidence given by the pharmacist, who said that unless selling upon the prescription of a physician he would mark upon the medicine the dose, or label it poison, or do both. Indeed, the learned counsel of the defendant concedes all this, for he says : “If any third party, unacquainted with the real contents of the vial, had been injured, then an action would lie against this defendant,” and the defense interposed rests wholly upon the fact asserted that full warning of the poisonous nature of the liquid was given, and the quantity which might be safely taken was stated to the purchaser. So that the question here whether the nonsuit ordered by the trial judge can be sustained • or not turns solely upon the inquiry whether the warning was in fact given, and that again upon the question whether the jury would have been at liberty to disbelieve the evidence of the defendant’s clerk. His story in itself was not improbable, so far as the defendant’s action was concerned. A druggist selling for ten cents a medicine which was a poison, and in a quantity capable of killing an incautious or ignorant purchaser;, would be quite likely, we should suppose, to give the brief information needed to protect his customer and shield himself from grave danger and disaster. Nor was the “witness impeached by what are called the contradictions in his testimony drawn out on cross-examination. They were very slight and utterly immaterial. But two facts disclosed by the proofs opened his testimony to doubt and possible disbelief. He was an interested witness. He had violated the law by omitting the label required. The medicine he delivered had killed its victim. The consequences of the act upon himself, upon his future, and upon his employer, were certain to be disastrous in the absence of explanation or justification. The motive to avert the danger even by falsehood was plain and powerful. The label was not on the vial. No such defense was possible. The only other one was to swear to the verbal warning given to the customer. The witness, therefore, stood in a position such as to provoke suspicion, arouse doubt, and justify watchful and rigid criticism: And then, joined to that come the facts of the conduct of the deceased.- If the evidence was true, he took the, poison in a deadly dose, and from the hands of his wife, with knowledge that it was a poison, and that he was largely exceeding the prescribed quantity. Nothing in the case permits us to imagine that he did so pnrposely, and intended suicide. What can be said and all that can be said is that he relied upon the peddler’s story of his experience in taking without injury one-half of a glass, rather than upon the druggist’s warning that the medicine was a strong poison. That is possible, but has about it some doubtful elements. A man even of ordinary intelligence and very moderate prudence, who had been told by a friend that he had been cured by a particular medicine, taken in the quantity of half a glass, ¿nd thereupon went to a druggist, who was also a doctor, to purchase it, and was then distinctly told that the medicine was a poison and but ten or twelve drops must be taken, would naturally be somewhat startled. We should expect him to speak and manifest surprise, or at least seek the truth out of the contradictions.

But this customer manifested none. He showed no curiosity. He asked no natural question. He did not say that a friend had taken ten times the doctor’s dose with safety, and ask who was right or who was wrong, or if there was not somewhere a mistake as to the medicine. On the contrary, with the warning ringing in Ms ears, he quietly receives the medicine without surprise, allows his wife to pour nearly the whole contents into a spoon,, and says not a word to her of the information he has received, does not tell her what the doctor said, does not heed his warning, relies upon the advice of an unskilled peddler, discarding that of the druggist and physician, and takes the fatal dose. It cannot be denied that this conduct matches naturally and exactly the line of conduct we should expect if no warning had been in fact given, and does not appear so perfectly natural when confronted with the opposite theory. It tends, therefore, to throw doubt upon it, and to make one hesitate as to the truth, and when combined with the palpable interest of the clerk to shield himself and his employer, makes a case in which there is a possibility of different and debatable inferences from the evidence given, and so develops a question of fact, rather than one of law. In Elwood v. Western Union Tel. Co. (45 N. Y. 549, 553) it was said that the rule that where unimpeached witnesses testify positively to a fact and are uncontradicted, their testimony must be credited, is subject to many qualifications ; and among them this, that the interest of tile witness may affect his credibility, and. it was added upon the facts of that case : “ Such evidence as there is, proceeds wholly from parties having an important interest in the question; each of them, if guilty of the negligent act,-would have the strongest- motive to deny it, as the admission would subject him or her to severe responsibility for the consequences. This is a controlling consideration in determining whether the statements of these witnesses should be taken as conclusive.” To a similar effect are other cases (Kavanagh v. Wilson, 70 N. Y. 177; Gildersleeve v. Landon, 73 Id. 609). The general term were, therefore, right in saying that the case should have been submitted to the jury.

The judgment should be affirmed and judgment absolute rendered in favor of the plaintiff upon the stipulation, with costs.

All the judges concurred.

Judgment accordingly. 
      
       Compare Penal Code, § 404.
     