hasty and awkward. his neighbours require him at his proper peril to come up to their standard." But it remains true that, if responsibility be thus determined, the object of the law in enforcing damages is in all cases not merely reparative, but partly also preventive: it aims at maintaining a certain average standard of carefulness by providing that those who fall short of this standard shall act at their peril. In laying down as a general principle that reparation should only be due where there has been at least negligence, if not culpable intention, I do not mean to affirm that there may not be important exceptions. Where protection from a particular mischief is of great importance, and where it is especially difficult to prove mischievous intention or neglect of others' rights on the part of persons who contribute in a secondary way to the mischief, it may easily be the less of two evils to make the burden fall on these contributories, though innocent even of negligence. This is perhaps the case where damage has been innocently done to the property of another by a man who had good reason for regarding it as his own. Suppose, e. g., that a man has innocently purchased stolen goods, under circumstances which gave no occasion whatever for suspicion. It seems hard that he should have to compensate for any damage done to the goods; but considering the great importance of protecting property, the great difficulty of tracing it when stolen, the ease with which trade in stolen goods may be carried on undetected, it is perhaps needful, for adequate repression of this trade, and adequate determent to possible purchasers of other men's goods, to adopt the broad principle that no seller can give a better title than he has got: so that not only restoration of such goods, but also reparation for any damage done to them, will be due to the rightful owner from the most innocent and diligent purchaser. And other exceptions may have to be admitted on similar grounds. Still, I conceive it will remain generally true that the enforcement of damages, no less than the infliction of punishment (in the narrow sense), should be regarded as implying, in the broad and general sense just explained, some degree of culpability in the person on whom reparation is imposed. 477. BESSEY V. OLLIOT. (1694. T. Raym. 467.) Raymond, C. J.: In all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering. And therefore Mich. 6 E. IV. 7. a. pl. 18 [ThornCutting Case], trespass quare vi & armis clausum fregit, & herbam suam predibus conculcando consumpsit in six acres, the defendant pleads, that he had an acre lying next the said six acres, and upon it a hedge of thorns, and he cut the thorns, and they ipso invito fell upon the plaintiff's land, and the defendant took them off as soon as he could, which is the same trespass; and the plaintiff demurred; and adjudged for the plaintiff; for though a man doth a lawful thing, yet if any damage do thereby befal another, he shall answer for it, if he could have avoided it. As if a man lop a tree, and the bough falls upon another ipso invito, yet an action lies. If a man shoots at butts, and hurt another unawares, an action lies. I have land through which a river runs to your mill, and I lop the fallows growing upon the river-side, which accidentally stop the water, so as your mill is hindered, an action lies. If I am building my own house, and a piece of timber falls on my neighbour's house, and breaks part of it, an action lies. If a man assault me, and I lift up my staff to defend myself, and in lifting it up hit another, an action lies by that person, and yet I did a lawful thing. And the reason of all these cases is, because he that is damaged ought to be recompensed. But otherwise it is in criminal cases, for there Actus non facit reum nisi mens sit rea. 478. CHARLES VINER. General Abridgment of Law and Equity. "Trespass" (X) (1793, 2d ed., Vol. XX). The intent shall not be construed in trespass. Contra in felony. As where a man shooting at butts kills T. N., it is not felony; so where a tyler drops a stone, which kills a man, not knowing it. But in those cases, if they lame or hurt a man, trespass lies; for there the intent is not to be considered.1 Topic 2. Striking, Shooting, Cutting, Driving, Walking; Handling Chattels; and Sundry Similar Acts WEAVER brought an action of trespass of assault and battery against Ward. The defendant pleaded that he was, amongst others, by the commandment of the lords of the council, a trained soldier in London, of the band of one Andrews, captain, and so was the plaintiff; and that they were skirmishing with their muskets charged with powder for their exercise in re militari against another captain and his band; and as they were so skirmishing, the defendant, casualiter et per infortunium et contra voluntatem suam, in discharging his piece, did hurt and wound the plaintiff; which is the same alleged trespass, absque hoc, that he was guilty aliter sive alio modo. And, upon demurrer by the plaintiff, judgment was given for him. For, though it were agreed that if men tilt or tourney in the presence of the king, or if two masters of defence playing their prizes kill one another, that this shall be no felony, or if a lunatic kill a man, or the like; because felony must be done animo felonico; yet, in trespass, which tends only to give damages according to hurt or loss, it is not so. And, therefore, if a lunatic hurt a man, he shall be answerable in trespass. And, therefore, no man shall be excused of a trespass (for this is the nature of an excuse, and not of a justification, prout ei bene licuit), except it may be judged utterly without his fault, as if a man by force take my hand and strike you, or if here the defendant had said that the plaintiff ran across his piece when it was discharging, or had set forth the case with the circumstances so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt. 1 [TOPIC 1. NOTES: "Civil liability: Inevitable accident as defence." (H. L. R., V, 36.) "Liability without intent or negligence: in general." (H. L. R., VII, 452456; VIII, 174; XI, 196; XV, 225.) ESSAYS: Oliver Wendell Holmes, Jr., “Privilege, Malice, and Intent." (H. L. R., VIII, 1.) M. P. B. Mignault, "The Modern Conception of Civil Responsibility." (Law Journal, XLV, 528, A. L. R. XLIV, 719.) Clarke Butler Whittier, "Mistake in the Law of Torts." (H. L. R., XV, 335.) 480. VINCENT v. STINEHOUR SUPREME COURT OF VERMONT. 1835 7 Vt. 62 THE cause came from the court below upon the following bill of exceptions: This was an action of trespass for defendant's driving against and over the plaintiff with his horse and sulkey. Plea, not guilty, and trial by jury. The plaintiff gave evidence tending to prove that he was walking in the road, east of the part usually travelled by carriages, in the town of St. Albans, and that the defendant was travelling the same road with his horse and sulkey, driving fast, and when coming near, the defendant drove out on the east side, in such a manner as to bring his horse in contact with the plaintiff, which knocked him down, and the sulkey wheel passed over his body and leg, whereby he was much bruised and injured. On the part of the defendant, the deposition of S. P. Bascomb was read. The plaintiff requested the Court to charge the jury, that if they found the plaintiff was walking out of the travelled path, and was run upon by the defendant, the plaintiff must recover, though there was not fault, neglect or want of prudence on the part of the defendant. But the Court declined so to charge. . . . To which neglect to charge as requested, and charging as aforesaid, the plaintiff excepted: and thereupon the cause passed to this court for revision. Turner for the plaintiff. . . . 2. The defendant cannot excuse himself by saying that the injury proceeded from the misconduct of the horse, or inevitable accident. Nor is this a hardship on the defendant. An injury has been done, and suppose it purely accidental, it is no worse for the defendant to sustain it than the plaintiff. He was guilty of no wrong, and the defendant, to say the least, was driving a skittish horse; and if the horse was frightened and became unmanageable, the injury done by him should be borne by the defendant. It should be his misfortune, and not the misfortune of the plaintiff. 3. Trespass does not imply any evil intention on the part of the trespasser. 1 Str. 596. It may be purely accidental, as where one enters on the land of another by mistake, or where one driving in the dark happens to get on to the wrong side of the road and injure the carriage of another by accident.... 5. The act may be a trespass, though the mind dissent, as where a person goes to cut timber on his own land, adjoining another's, and does not intend to trespass; yet if he cut the other's timber, it would be trespass, and it would be no answer to the action for him to say he did not intend it, and used great precaution, and carefully examined the lines in order to prevent it. . . . Hunt and Bearsley, for the defendant. The only question presented by this case is, whether, where one man, in the proper exercise of a lawful employment, is the occasion of damage to another, and the act producing the damage could not be controlled by the use of proper prudence and caution, he is liable to repair the damage, whatever it may be. The defendant insists he is not. The opinion of the Court was delivered by WILLIAMS, Ch. J. In this case the jury must have found that the injury suffered by the plaintiff was the result of unavoidable accident, and that there was no want of prudence or care on the part of the defendant. They were instructed by the Court, that if they found these to be the facts, their verdict must be for the defendant. . . . From an examination of the case, we find the charge of the Court was conformable to the law, and is wholly unexceptionable. The principle of law, which is laid down by all the writers upon this subject, and which is gathered from and confirmed by the whole series of reported cases, is, that no one can be made responsible, in an action of trespass, for consequences where he could not have prevented those consequences by prudence and care. Thus it has been laid down, that if a horse, upon a sudden surprise, run away with his rider, and runs against a man and hurts him, that is no battery. Where a person in doing an act which it is his duty to perform hurts another, he is not guilty of battery. A man falling out of a window, without any imprudence, injures another, -there is no trespass. A soldier, in exercise, hurts his companion-no recovery can be had against him. . . . In the case of Wakeman v. Robinson, 2 Bing. 213, in trespass for driving against plaintiff's horse, and injuring him with shafts of a gig, it was considered a good defence, that the horse was frightened by the noisy and rapid approach of a butcher's cart, and became ungovernable, so that the injury was occasioned by unavoidable accident. In the case of Goodman v. Taylor, 5 Car. & Payne, 410, which was an action of trespass for an injury done to a horse by a pony and chaise running against it, evidence was given on the part of the defendant, that his wife was holding the pony by the bridle, when a punch and judy show came by and frightened the pony, which ran off with the chaise. It was held, that, if true, this was a good defence on a plea of not guilty. . To prevent any abuse of this protection, a person is accounted negligent or careless, and blame is imputed to him, if he does not use an extraordinary degree of circumspection and prudence, greater than is commonly practised, and if he might have prevented the accident. Therefore, where a person is doing a voluntary act, which he is under no obligation to do, he is held answerable for any injury which may happen to another, either by carelessness or accident. On this principle, the case of Underwood v. Hewson, 1 Str. 596, was decided. The act of uncocking the gun was voluntary, not unavoidable; a greater degree of prudence was therefore required. The case of a man turning round, and knocking down another, whom he did not see, the shooting an arrow at a mark, which glanced, were of this class. The act was purely voluntary, not one which the person was required to do. . . . The result of our examination is, that we think there must be some blame, or want of care and prudence, to make a man answerable in trespass; and that where a horse takes a sudden fright, and there is no imprudence in the rider, either in managing the horse or in driving an unsafe horse, and the horse runs against another, and injures him, the trespass is wholly involuntary and unavoidable, for which no action can be maintained. . . . The judgment must therefore be affirmed. ... 481. BROWN v. KENDALL SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1850 6 Cush. 292 THIS was an action of trespass for assault and battery, originally commenced against George K. Kendall, the defendant, who died pending the suit, and his executrix was summoned in. It appeared in evidence, on the trial, which was before WELLS, C. J., in the Court of Common Pleas, that two dogs, belonging to the plaintiff and the defendant, respectively, were fighting in the presence of their masters; that the defendant took a stick about four feet long, and commenced beating the dogs in order to separate them; that the plaintiff was looking on, at the distance of about a rod, and that he advanced a step or two towards the dogs. In their struggle, the dogs approached the place where the plaintiff was standing. The defendant retreated backwards from before the dogs, striking them as he retreated; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury. . . The defendant requested the judge to instruct the jury, that "if both the plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care and the plaintiff was not, or if at that time both plaintiff and defendant were not using ordinary care, then the plaintiff could not recover." . . . The judge declined to give the instructions, as above requested, but left the case to the jury under the following instructions: "If the defendant, in beating the dogs, was doing a necessary act, or one which it was his duty under the circumstances of the case to do, and was doing it in a proper way; then he was not responsible in this action, provided he was using ordinary care at the time of the blow. If it was not a necessary act; if he was not in duty bound to attempt to part the dogs, but might with propriety interfere or not as he chose; the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word inevitable not in a strict but a popular sense." |