TITLE B: ACTIVE CAUSATION SUB-TITLE (I): GENERAL PRINCIPLE Topic 1. Personal Passivity in General, as Negativing Responsibility 379. HENRY T. TERRY. Leading Principles of Anglo-American Law. (1884. C. 5, § 77, pp. 63-68.) The Double Character of an Act. It is agreed by all that an act has two elements, an internal determination of the will and an external manifestation of it. . . . The Will of the Actor. Some determination of the will of the actor is necessary. If A takes hold of B's arm and with it strikes C, or pushes B so that he falls against C, there is no act of B's. So a person's birth or death is not his act, even though the death be by suicide; it is then a consequence of his act, but not the very act itself. So if a man's horse runs away with him while he is riding and does damage, the rider is not liable, there being no act on his part. . . Instinctive Movements. There are some movements of the body as to which it is not always easy to say how far they are the result of the volition. In fact psychologists tell us that no hard and fast line can be drawn between volition and what is called the reflex action of the nervous system. But most of these movements are of no legal importance, because they go on in the interior of the body. The only case that is likely to raise any legal difficulty, is where a movement that belongs to a class which are capable of being produced by what is undoubtedly volition, takes place in peculiar circumstances where volition cannot by the testimony of consciousness be known to exist. For example, if a person, being suddenly struck at, dodges (as we say) "instinctively," or if a sleeper, whose leg is tickled, kicks; ought the movement to be considered as an act? Here a certain amount of confusion has crept in. . . . It would not be necessary to hold that a person would be liable for such "instinctive movements" as jumping aside to escape a certain blow or kicking in his sleep, if these resulted in direct and forcible damage to another's person or property, because even the authorities which maintain the strict view of liability in trespass admit that "inevitable accident" where the defendant is "wholly without blame" will excuse a trespass. Involuntary Acts. Bodily movements caused by external force and the instinctive movements above mentioned are often called involuntary. But these are not proper legal meanings of the phrase. The former are certainly not acts at all; and the latter as such are either not acts at all or are voluntary acts. An involuntary act in law means an act done under coercion or compulsion. But these acts are as much the result of choice and volition as the freest of our acts. If A offers B one hundred dollars for his watch and B accepts the offer and delivers the watch to him, B compares in bis own mind two possible things, namely, the having the money and the having the watch, and chooses the one which he likes the best. So if A presents a pistol at B's head and demands his watch under a threat of death, B's mental process is precisely the same. He compares the two desirable things, the having the watch and remaining alive, and chooses the one which he likes the best. 380. CHARLES VINER. General Abridgment of Law and Equity, "Trespass (X). (1793. 2d ed., Vol. XX.) Note for a rule, that in all trespasses there must .. But be a voluntary act, and also a damage; otherwise trespass does not lie. where the wind blows my tree upon the land of my neighbor, I may take it, and this is no trespass; for this is the act of the wind, and not of me. 381. GAUTRET v. EGERTON. (1867, L. R. 2 C. P. 371.) Willes, J.: What duty does the law impose upon these defendants to keep their bridges in repair? If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it I may be liable for the consequences: but, if I do nothing, I am not. . . . No action will lie against a spiteful man who, seeing another running into a position of danger, merely omits to warn him. To bring the case within the category of actionable negligence, some wrongful act must be shown, or a breach of some positive duty. ... 382. BUCH v. AMORY MANUFACTURING COMPANY. (1899. 69 N. H. 257, 44 Atl. 809.) Carpenter, C. J.: There is a wide difference, a broad gulf, both in reason and in law, between causing and preventing an injury; between doing, by negligence or otherwise, a wrong to one's neighbor, and preventing him from injuring himself; between protecting him against injury by another, and guarding him from injury that may accrue to him from the condition of the premises which he has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking, and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law. Is a spectator liable if he sees an intelligent man or an unintelligent infant running into danger, and does not warn or forcibly restrain him? What difference does it make whether the danger is on another's land, or upon his own, in case the man or infant is not there by his express or implied invitation? If A sees an eight-year-old boy beginning to climb into his garden over a wall stuck with spikes, and does not warn him or drive him off, is he liable in damages if the boy meets with injury from the spikes? 1 Hurl. & N. 777. I see my neighbor's two-year-old babe in dangerous proximity to the machinery of his windmill in his yard, and easily might, but do not, rescue him. I am not liable in damages to the child for his injuries, nor, if the child is killed, punishable for manslaughter by the common law or under the statute (Pub. St. c. 278, § 8), because the child and I are strangers, and I am under no legal duty to protect him.1 383. SMITH v. STONE KING'S BENCH. 1647 Smith brought an action of trespass against Stone, pedibus ambulando. The defendant pleads this special plea in justification, viz., that he was carried upon the land of the plaintiff by force and violence of 1 CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS PRINCIPLE: Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. V, § 78 (p. 63), § 85 (p. 67); c. XIII, §§ 453–457 (p. 449). Sheldon Amos, "Systematic View of the Science of Jurisprudence," c. VI, § 7, p. 82. others, and was not there voluntarily, which is the same trespass for which the plaintiff brings his action. The plaintiff demurs to this plea. In this case, ROLL, J., said, that it is the trespass of the party that carried the defendant upon the land, and not the trespass of the defendant: as he that drives my cattle into another man's land is the trespasser against him, and not I, who am owner of the cattle. 384. GIBBONS v. PEPPER KING'S BENCH. 1695 1 Ld. Raym. 38 TRESPASS; assault and battery. The defendant pleads that he rode upon a horse in the king's highway, and that his horse, being affrighted, ran away with him, so that he could not stop the horse; that there were several persons standing in the way, among whom the plaintiff stood; and that he called to them to take care, but that, notwithstanding, the plaintiff did not go out of the way, but continued there; so that the defendant's horse ran over the plaintiff against the will of the defendant; quæ est eadem transgressio, etc. The plaintiff demurred. And Serjeant Darnall, for the defendant, argued that if the defendant in his justification shows that the accident was inevitable, and that the negligence of the defendant did not cause it, judgment shall be given for him. To prove which he cited Weaver v. Ward. Northey, for the plaintiff, said, that in all these cases the defendant confessed a battery, which he afterwards justified; but in this case he justified a battery which is no battery. Of which opinion was the whole Court. For if I ride upon a horse, and J. S. whips the horse so that he runs away with me and runs over any other person, he who whipped the horse is guilty of the battery, and not I. But if I by spurring was the cause of such accident, then I am guilty. In the same manner, if A takes the hand of B, and with it strikes C, A is the trespasser, and not B. And, per Curiam, the defendant might have given this justification in evidence, upon the general issue pleaded. And therefore judgment was given for the plaintiff. 385. LAIDLAW v. SAGE COURT OF APPEALS OF NEW YORK. 1899 158 N. Y. 73, 52 N. E. 679 [The facts are fully stated in No. 358, ante] APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff, entered upon the verdict of a jury. . . . ... Edward C. James, John F. Dillon, and Rush Taggart, for appellant. . . . The plaintiff was not moved from a place of safety to a place of danger. He stood in the midst of the danger before he was moved. . . . Joseph H. Choate, Noah Davis, Adolph L. Pincoffs, and Henry Wynans Jessup, for respondent. . . . The laying of hands upon the plaintiff by Mr. Sage for the purpose of shielding himself from an injury (which he alone knew was threatened), by changing the plaintiff's position so as to interpose plaintiff between himself and such danger, was an unlawful interference with plaintiff's person, and the carrying out of such intent by the actual removal of plaintiff without his consent renders defendant liable for the injury plaintiff suffered in consequence of the wrongful and unlawful act. . . . MARTIN, J. This action was commenced May 26, 1892. Its purpose was to recover for personal injuries sustained by the plaintiff in consequence of an explosion which occurred in the defendant's office in the city of New York on the fourth day of December, 1891. . . . This case has been tried four times, and passed upon three times, by the intermediate appellate tribunal. Upon the second trial the plaintiff has had a verdict. The Court seems to have charged the jury in accordance with the principles laid down by the General Term upon the first appeal. Upon that trial, however, the defendant's counsel requested the Court to charge: "If the jury find from the evidence that the defendant did take the plaintiff and use him as a shield, but that this action was involuntary, or such as would instinctively result from a sudden and irresistible impulse in the presence of a terrible danger, he is not liable to the plaintiff for the consequences of it." That request the Court refused; but added: "I will charge it that the essence of the liability must be a voluntary act." Upon the second appeal, that question having been thus sharply presented, the General Term again reversed the judgment, upon the ground that the Court erred in refusing to charge that request. Upon the last trial, which is now under review, the trial Court . . . charged that, if the defendant involuntarily put his hands upon the plaintiff in a moment of great excitement, confronted with immediate and serious danger, without meaning to interfere with him, he would not be responsible. But it submitted the question, whether the act of the defendant was deliberate and unintentional, to the jury, calling attention to the fact that the defendant testified that "he was in perfect possession of his senses, recollected everything that was done, that everything he did there was done intentionally," and then charged that if, under those circumstances, he voluntarily put out his hand and touched the plaintiff, a cause of action was made out, and the plaintiff was entitled to a verdict. . . . 1. That the duties and responsibilities of a person confronted with such danger are different and unlike those which follow his actions in performing the ordinary duties of life under other conditions, is a wellestablished principle of law. The rule applicable to such a condition is stated in Moak's Underhill on Torts (p. 14) as follows: "The law presumes that an act or omission done or neglected under the influence of pressing danger, was done or neglected involuntarily. . . ." This principle of pressing danger, and an act or omission in its presence, was discussed in the squib case (Scott v. Shepherd, 2 W. Black. 894) and in the wine case (Vandenburgh v. Truax, 4 Denio, 464). That principle has been many times affirmed by the decisions of the courts of this State as well as others. Indeed, the trial Court recognized this doctrine in its charge. 2. But when we examine the defendant's evidence, we find that he testified that he never had his hands on the person of the plaintiff in any manner whatever until after the explosion, and that he did not at any time have any intent or design of interposing the body of the plaintiff between himself and the stranger. . . . The statement of the Court as to the admission of the defendant can hardly be said to be fair deduction from his evidence. Nor is the justice of eliminating from its statement to the jury the fact that the admissions he did make were accompanied by the evidence that he in no way touched the plaintiff and had no intention of doing so, quite appreciated. . . . The only witness whose testimony is relied upon to show any interference with the plaintiff by the defendant was the plaintiff himself. He not only had all the interest of a party to the action, but the undisputed proof disclosed that his memory has been very seriously impaired. . . . With this condition of the proof, it is quite difficult to say that there was any such evidence of the defendant's intentional interference with the plaintiff as would entitle him to recover in this action or have the question submitted to a jury. . . . Therefore, it would seem that the plaintiff was not entitled to even nominal damages, and that it was the duty of the Court to have directed a verdict for the defendant. 386. ANONYMOUS. (1705. 2 Salk. 655.) Trover lies not against a carrier for negligence, as for losing a box; but it does for an actual wrong, as if he break it to take out the goods, or sell it: per Curiam, Pasch. 7 W. 3, B. R. And therefore denial is no evidence of a conversion, if the thing appears to have been really lost by negligence; but if that does not appear, or if the carrier had it in custody when he denied to deliver it, it is good evidence of a conversion; per TREVOR, C. J. AN action of trover was brought by Hugh Ross, Esq. against John Johnson and William Dowson, for certain goods mentioned in the dec |