then and there drawn by a certain horse, upon and along a certain public highway there (to wit, a certain public highway leading from ...... to......,) at a certain crossing of the said public highway and a certain railroad of the defendant, in the county of ...... aforesaid; and the defendant was then and there possessed of a certain locomotive engine and train of cars then attached thereto, which said locomotive engine and train were then and there under the care and management of divers then servants of the defendant, who were then and there driving the same upon and along the said railroad, near and towards the crossing aforesaid: And while the plaintiff, with all due care and diligence, was then and there riding in the said carriage across the said railroad, at the said crossing, upon the said public highway there, the defendant then and there, by its said servants, so carelessly and improperly drove and managed the said locomotive engine and train, that by and through the negligence and improper conduct of the defendant, by its said servants, in that behalf, the said locomotive engine and train then and there ran and struck with great force and violence upon and against the said carriage, and thereby the plaintiff was then and there thrown with great force and violence from and out of the said carriage to and upon the ground there, and was thereby then and there greatly bruised, hurt and wounded, and divers bones of his body were then and there broken, and he became and was sick, sore, lame and disordered, and so remained for a long space of time, to wit, hitherto, during all which time he, the plaintiff, suffered great pain, and was hindered and prevented from attending to and transacting his affairs and business; and by means of the premises the plaintiff was forced to, and did then and there lay out divers sums of money, amounting to ...... dollars, in and about endeavoring to be cured of his said wounds, hurts and bruises, occasioned as aforesaid; and also by the running and striking of the said train upon and against the said carriage as aforesaid, at the time and place in that behalf aforesaid, the said carriage, then of the value of ...... dollars, and whereof the plaintiff was then and there lawfully possessed, was crushed and destroyed, and then and there became and was rendered of no use or value to the plaintiff.. Wherefore the plaintiff says that he is injured, and has sustained damage to the amount of ... dollars, and therefore he brings his suit, etc. 10. SCOTT v. SHEPHERD COMMON PLEAS. 1773 2 Wm. Bl. 892 TRESPASS and assault for throwing, casting, and tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and so burning one of his eyes that he lost sight of it, whereby, &c. On not guilty pleaded, the cause came on to be tried before Nares, J., last summer assizes at Bridgwater, when the jury found a verdict for the plaintiff with £100 damages, subject to the opinion of the Court on this case. On the evening of the fair day at Milbourne Port, 28th October, 1770, the defendant threw a lighted squib, made of gunpowder, &c., from the street into the market-house, which is a covered building supported by arches, and inclosed at one end, but open at the other and both the sides, where a large concourse of people were assembled ; which lighted squib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread, &c. That one Willis instantly, and to prevent injury to himself and the said wares of the said Yates, took up the said lighted squib from off the said standing, and threw it across the said market-house where it fell upon another standing there of one Ryal, who sold the same sort of wares; who instantly, and to save his own goods from being injured, took up the said lighted squib from off the said standing, and then threw it to another part of the said market-house, and in so throwing it struck the plaintiff, then in the said market-house, in the face therewith, and the combustible matter then bursting put out one of the plaintiff's eyes. Qu. If this action be maintainable? This case was argued last term by Glyn for the plaintiff, and Burland for the defendant; and this term, the Court being divided in their judgment, delivered their opinions seriatim. case. NARES, J., was of opinion that trespass would lie well in the present That the natural and probable consequence of the act done by the defendant was injury to somebody, and therefore the act was illegal at common law. And the throwing of squibs has, by statute W. III, been since made a nuisance. Being, therefore, unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate: 21 Hen. VII, 28, is express that malus animus is not necessary to constitute a trespass. So, too, 1 Stra. 596; Hob. 134; T. Jones, 205; 6 Edw. IV, 7, 8; Fitzh. Trespass, 110. The principle I go upon is what is laid down in Reynolds v. Clarke, Stra. 634, that if the act in the first instance be unlawful, trespass will lie. Wherever, therefore, an act is unlawful at first, trespass will lie for the consequence of it. . . . But he who does the first wrong is answerable for all the consequential damages. . BLACKSTONE, J., was of opinion that an action of trespass did not lie for Scott against Shepherd, upon this case. He took the settled distinction to be, that where the injury is immediate, an action of trespass will lie; where it is only consequential, it must be an action on the case: Reynolds v. Clarke, Lord Raym. 1401, Stra. 634; Haward v. Bankes, Burr. 1114; Harker v. Birbeck, Burr. 1159. The lawfulness or unlawfulness of the original act is not the criterion; though something of that sort is put into Lord Raymond's mouth in Stra. 635, where it can only mean, that if the act then in question, of erecting a spout, had been in itself unlawful, trespass might have lain, but as it was a lawful act (upon the defendant's own ground), and the injury to the plaintiff only consequential, it must be an action on the case. But this cannot be the general rule; for it is held by the court in the same case, that if I throw a log of timber into the highway (which is an unlawful act), and another man tumbles over it, and is hurt, an action on the case only lies, it being a consequential damage; but if in throwing it I hit another man, he may bring trespass, because it is an immediate wrong. . . . So that lawful or unlawful is quite out of the case; the solid distinction is between direct or immediate injuries on the one hand, and mediate or consequential on the other. And trespass never lay for the latter. If this be so, the only question will be whether the injury which the plaintiff suffered was immediate or consequential only; and I hold it to be the latter. The original act was, as against Yates, a trespass; not as against Ryal or Scott. The tortious act was complete when the squib lay at rest upon Yates's stall. . . . If a man tosses a football into the street, and, after being kicked about by one hundred people, it at last breaks a tradesman's window, shall he have trespass against the man who first produced it? Surely only against the man who gave it that mischievous direction. . . . I am of opinion that in this action judgment ought to be for the defendant. GOULD, J., was of the same opinion with Nares, J., that this action was well maintainable. The whole difficulty lies in the form of the action, and not in the substance of the remedy. The line is very nice. between case and trespass upon these occasions. I am persuaded there are many instances wherein both or either will lie. I agree with Brother Nares, that wherever a man does an unlawful act, he is answerable for all the consequences; and trespass will lie against him, if the consequence be in nature of trespass. . . . I shall not go over again the ground which Brother Nares has relied on and explained, but concur in his opinion, that this action is supported by the evidence. DEGREY, C. J. This case is one of those wherein the line drawn by the law between actions on the case and actions of trespass is very nice and delicate. Trespass is an injury accompanied with force, for which an action of trespass vi et armis lies against the person from whom it is received. The question here is, whether the injury received by the plaintiff arises from the force of the original act of the defendant, or from a new force by a third person. I agree with my Brother Blackstone as to the principles he has laid down, but not in his application of those principles to the present case. The real question certainly does not turn upon the lawfulness or unlawfulness of the original act; for actions of trespass will lie for legal acts when they become trespassers by accident; as in the cases cited of cutting thorns, lopping of a tree, shooting at a mark, defending oneself by a stick which strikes another behind, &c. They may also not lie for the consequences even of illegal acts, as that of casting a log into the highway, &c. But the true question is, whether the injury is the direct and immediate act of the defendant; and I am of opinion that in this case it is. It has been urged that the intervention of a free agent will make a difference, but I do not consider Willis and Ryal as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preservation. On these reasons I concur with Brothers Gould and Nares, that the present action is maintainable. Postea to the plaintiff. 11. COVELL v. LAMING NISI PRIUS. 1808 1 Camp. 497 TRESPASS for running defendant's ship against plaintiff's in the river Thames. Plea, not guilty. It appeared, that when the accident happened, the defendant was himself on board of his ship, and stood at the helm; but there was evidence to shew, that he wished to steer clear of the plaintiff, and that if he was to blame for what had happened, it was only through ignorance and unskilfulness. The Attorney General contended, that the action could not be supported, unless the jury should believe that the defendant intended to run his vessel against the plaintiff's, and wilfully did the act complained of. . . . Thus it is wilfulness alone that can determine the nature of the act. The case of Leame v. Bray,' seemed to establish the distinction, that where the injury is immediate from a forcible act of the defendant, the remedy is trespass, and that case is never proper except where the injury is consequential; but the doctrine there laid down, had been since much doubted by the Court of Common Pleas.2 Lord ELLENBOROUGH, C. J. I know there is a difference of opinion upon this subject. I have had much communication concerning it with those whom I respect very highly; but I confess, I have not been able to perceive the grounds of their difficulties. My own opinion has always been uniform. Whether the injury complained of arises directly, or follows consequentially, from the act of the defendant I consider as the only just and intelligible criterion of trespass and case. If, in the dark, I ignorantly ride against another man on horseback, this is undoubtedly trespass, although I was not aware of his presence till we came into contact. It makes no difference that here the parties were sailing on ship board. The defendant was at the helm, and guided the motions of his vessel. The winds and the waves were only instrumental in carrying her along in the direction which he communicated. The force, therefore, proceeded from him, and the injury which the plaintiff sustained, was the immediate effect of that force. The defendant had a verdict. Garrow, Park and Marryat, for the plaintiff. The Attorney General and Pitcairn, for the defendant. 12. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1765. Book III, p. 122.) This action of trespass, or transgression, on the case, is an universal remedy given for all personal wrongs and injuries without force; so called because the plaintiff's whole case or cause of complaint is set forth at length 1 3 East, 593. 2 Rogers v. Imbleton, 2 N. R. 119. in the original writ.' For though in general there are methods prescribed, and forms of actions previously settled, for redressing those wrongs, which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff's person or property, as battery, non-payment of debts, detaining one's goods or the like; yet where any special consequential damage arises, which could not be foreseen and provided for in the ordinary course of justice, the party injured is allowed, both by common law and the statute of Westm. 2, c. 24, to bring a special action in his own case, by a writ formed according to the peculiar circumstances of his own particular grievance. For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and therefore, wherever a new injury is done, a new method of remedy must be pursued. And it is a settled distinction," that where an act is done which is in itself an immediate injury to another's person or property, there the remedy is usually by an action of trespass vi et armis; but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass viet armis will lie, but an action on the special case, for the damages consequent on such omission or act. 13. JOSEPH CHITTY. Treatise on Pleading. (1808. 11th Amer. ed., 1851, Vol. I, p. 96.) To this statute (of Westminster 2d) the copious production of new forms of writs, and the great encouragement and frequency of actions on the case so infinitely various is to be attributed. 6 Notwithstanding these provisions, it was once thought that the circumstance of an action being of the first impression, and unprecedented, constituted a conclusive objection against it; and it is observable, that the Statute Westminster 2d, does not recognize or confer any right to frame writs in cases entirely new; it merely gives or enforces the power to frame new writs by analogy to and upon the principle of such as had previously existed, (i. e. in consimili casu). It has however, been observed, that it by no means follows, that because in cases unprovided for by the Register, the statute directs an action upon the case to be framed, that the action upon the case or a remedy for every new injury in general did not subsist at common law. There is also the authority of Lord Kenyon for the doctrine, that whenever the common law recognizes or creates a legal right, it will also confer a remedy by action; and Lord Chief Justice Pratt, in answer to the objection of novelty, said, that he wished never to hear it urged again, for torts are infinitely various, not limited or confined, and there is nothing in nature that may not be an instrument of mischief, and the special action on the case was introduced, because the law will not suffer an injury without affording a remedy, and there must be new facts in every special action on the case. In the case of Pasley v. Freeman, Mr. J. Ashurst observed, that where cases are new in their principle, it is necessary to have recourse to legislative interposition in order to remedy the grievance; but where the case is only new in the instance, and the only question is upon the application of a principle recognized by law to such new case, it will be just as competent to courts of justice to apply the acknowledged principle to any case which may arise two centuries hence as it was two centuries ago. 1 For example, Registr. Brev. 105. 1 Salk. 20; 6 Mod. 54. 5 11 Mod. 130; Lord Raym. 1402; Stra. 635. 2 See p. 52. |