CHAPTER VIII.

OF TRESPASSES AND INJURIES FROM NEGLIGENCE-NEGLIGENT MANAGEMENT OF CHATTELS.

OF TRESPASSES AND INJURIES FROM NEGLIGENCE-NEGLIGENT MANAGEMENT OF CHATTELS.

544. Negligence and inevitable accident.-No person may, as we have seen, be excused of a trespass except it be adjudged to have been committed entirely without fault, or to have been an inevitable accident, or to have been occasioned by the negligence of the plaintiff himself. "Looking into all the cases from the year book in the 21 Hen. 7, down to the latest decision on the subject, I find the principle to be," observes GROSE, J., "that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable." (a)1 Where to an action of trespass the defendant pleaded

(a) Leame v. Bray, 3 East, 599.

There is no liability for damages that ensue from the doing of a lawful act in a lawful manner, but where either a wrongful or rightful act is done in a negligent or careless manner, so as to be the proximate cause of an injury to another, liability attaches for all the consequences of the act. Howe v. Young, 16 Ind. 312; Detroit Daily Post Co. v. McArthur, 16 Mich. 477; Thomasson v. Agnew, 24 Mi-s. 93; Falim v. Reichard, 8 Wis. 255; Auburn Plank Road Co. v. Douglass, 9 N. Y. 444; Chatfield v. Wilson, 28 Vt. 49.

that he was a soldier of the trained bands, and was skirmishing with muskets charged with powder for exercise in re militari, and that in discharging his musket he accidentally and unin

Thus, if a person discharges a gun near a highway, even though upon his own premises, whereby the horse of another passing over the highway is frightened, and injury results therefrom, he is liable for all the consequences, whether he intended to frighten the horse or not. The intention might affect the remedy, but not the liability. Cole v. Fisher, 11 Mass. 187. So if a person beats a drum in a highway, and a horse is frightened, and injures either the person or property of the owner. Loubz v. Haffner, I Dev. (N. C.) 185. So if the servant of A willfully or carelessly drives a carriage against the carriage of B, whereby B's carriage, or B himself, or any of his property is injured, A is liable therefor, as much as though the act had been done by himself, for employing a mischievous or careless servant. Barnes v. Hurd, I Mass. 57. A person ascended in a balloon, and came down in B's garden, and a crowd of people were attracted there by the incident, and broke down B's fences and trod down the vegetables in his garden in assisting the aeronaut to get out of the balloon; his position there being perilous, it was held that the aeronaut was liable for all the damages resulting therefrom. Guille v. Swan, 19 Johns. (N. Y.) 381. The defendant discharged a musket at a vessel, and wounded the captain, so that the voyage was defeated, and it was held that he was liable to the owners of the vessel for the damages resulting to them therefrom. Adams v. Heminway, 1 Mass. 495. The defendant was engaged in shooting at a mark with a pistol; the ball glance I and hit the plaintiff; although the injury was unintentional, yet it was held that he was liable therefor. Welch v. Durand, 36 Conn. 182; 4 Am. Rep. 55. So where the defendant sold hay upon which white-lead paint was spilled, but which he had attempted to cleanse, and which he supposed was cleansed, and the plaintiff's cow having died from eating it, he was held liable. French v. Vining, 102 Mass. 132; 3 Am. Rep. 440. But while the fact that an injury which results from a mere accident on the part of the defendant will not excuse him from liability for the injuries resulting therefrom, yet, for injuries resulting from inevitable accident, or which happens entirely from a cause over which he has not and can not have control, and without any fault or blame imputable to him, no liability exists for the consequences. Harvey v. Dunlop, Hill & Denio's Supt. (N. Y.) 193; Gaule v. Humes, 20 Md. 297; Vincent v. Stinehour, 7 Vt. 62; Burton v. Davis, 15 La. An. 448; Bizzell v. Booker. 16 Ark. 308.

By inevitable accident, is meant, that which happens without the fault or blame of another, in any measure or degree. That which results from the exercise of a legal right, in a proper and prudent manner, so that no blame is imputable to the person exercising it, and which is caused by some circumstance over which he had no control. The matter is well illustrated by the court in the case of Weaver v. Ward, Hob. 134. In that case the plaintiff and defendant were both trained soldiers of London, and as they were skirmishing with their mu-kets, charged with powder, against another band of trained soldiers, the defendant accidently wounded the plaintiff. It was not claimed that the act was intentional, but on the contrary it was admitted by the pleadings that the wound was inflicted casually and by mischance. But it did not appear that the plaintiff was guilty of negligence, nor, on the other hand, that the defendant was free from it. The court held the defendant liable, and illustrated the distinction between an accident in a case of felony an trespass, thus: "If men tilt or tourney in the presence of the king, or if two masters of

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tentionally injured the plaintiff, it was held that the plea, being a mere excuse, and no justification, afforded no answer to the action. (b) 1 And where the defendant was uncocking his gun, and the plaintiff was stopping to see it, and the gun went off and wounded the plaintiff, it was held that the plaintiff might maintain an action for the injury. (c) So, where the defendant intrusted a loaded gun to be carried by an inexperienced servant girl, and the girl pointed the gun in sport at the plaintiff, and drew the trigger, and shot him in the eye, and blinded him, it was held that the defendant was responsible in damages. for the consequences of his carelessness. (d) And where the defendant gave the plaintiff a carboy, or large bottle of nitric acid, to carry, without informing him of the dangerous nature of the acid, and the carboy burst, and the acid inflicted dangerous wounds upon the plaintiff, and burnt and destroyed his clothes, and disabled him, it was held that the defendant was responsible in damages for the injury. (e)3 But if the injury

(b) Weaver v. Ward, Hob. 134. Dickenson v. Watson, 2 jones, 205.

(c) Underwood v. Hewson, 1 Str. 596.

(d) Dixon v. Bell, 5 M. & S. 198. (e) Farrant v. Barnes, II C. B., N. S. 553; 31 Law J., C. P. 137.

defense in playing their prizes kill one another, this shall be no felony; or if a lunatic kills 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, except it may be judged entirely 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 run cross his piece when it was discharging, or had set forth the case with circumstances, so as it had appeared to the court to be inevitable, and that the defendant had committed no negligence to give occasion to the hurt."

See also Harvey v. Dunlop, Hill & Denio's Supt. (N. Y.) 193; Bullock v. Babcock, 3 Wend. (N. Y.) 391; Burton v. Davis, 15 La. An. 448; Howe v. Young, 16 Ind. 312; Wakeman v. Robinson, 1 Bing. 213; Vincent v. Stinhour, Gault v. Humes, 20 Md. 297, for instances of inevitable accident.

1 Castle v. Duryea, 2 Keyes (N. Y.) 169; Rhodes v. Roberts, 1 Stew. (Ala.) 145. As to fireworks and injuries from, see Conklin v. Thompson, 29 Barb. (N. Y.) 218.

2 Taylor v. Rainbow, 2 Hen. & Mun. (Va.) 423. So where the defendant was shooting at a mark, and the ball glanced and injured the plaintiff, he was held liable in trespass. Welch v. Durand, 36 Conn. 182; 4 Am. Rep. 55.

3 So where one shipped an article mainly composed of chloride of lime, as bleaching powder, the fumes of which injured other goods being transported by the same conveyance, he was held liable for all the damages resulting therefrom. Brass v. Maitland, 6 El. & E. 470. But in order to fix liability, it must be shown that the shipper knew the nature of the article, and that the carrier did not. Williams v. East India Co., 3 East, 192; Bailey v. Merril, 3 Bulst. 94.

has resulted from circumstances over which the defendant had no control, he is not then answerable. This has been held to be the case when the defendant's horse, being frightened by the sudden noise of a butcher's cart which was driven furiously along the street, became ungovernable, and plunged the shaft. of a gig into the breast of the plaintiff's horse; (f) also where a horse, naturally vicious, but not known to be so by the defendant who was riding it, became restive and unmanageable, and ran upon the foot pavement and knocked down and killed the plaintiff's husband; (g) and where a horse, ridden by the defendant, was frightened by a clap of thunder, and ran over the plaintiff, who was incautiously standing with others in the carriage-road. ()1

(ƒ) Wakeman v. Robinson, 1 Bing. 213; 8 Moore, 63.

(g) Hammack v. White, 11 C. B., N.

S. 588; 31 Law J., C. P. 129.

(h) Gibbons v. Pepper, 1 Ld. Raym. 38.

'Sullivan v. Scripture, 3 Allen (Mass.) 364, or where a horse is frightened from any cause over which the owner has no control, and escapes from the control of its driver, he being in the exercise of due care, no liability attaches for the damages resulting from its escape. Welch v. Lawrence, 2 Chit. 262; Doyle v. Wragg, 1 F. & F. 7; Brown v. Collins, 53 N. H. 442. But if the defendant is guilty of negli gence either in the driving of the animal or in reference to the harness or vehicle used, which contributes to the injury, he is liable. Pierkens v. Diecker, 21 Ohio St.

212.

A person in attaching a horse to a vehicle of any kind to be driven in a public street, is bound to the exercise of due care and caution in making such attachment. He is bound to see that there are no defects in the harness or vehicle that can be discovered by proper examination, and in the driving of the animal is bound to exercise due care; for if, by reason of any defect in the harness or carriage which could be discovered by a careful examination, or by reason of any lack of skill in the management of the animal, he will be liable for all injuries resulting if the horse by reason thereof runs away. But if the horse runs away in consequence of some fright from objects in the street. or other cause over which the owner has no control, he will be excused from liability on the ground of accident. Unger v. Forty-second Street R. R. Co., 6 Rob. (N. Y.) 237. But if a horse is left unhitched, this is negligence per se, which will render the owner, or party in charge thereof, liable for all injuries resulting therefrom. Norris v. Kohler, 41 N. Y. 42. And if a person places anything in or near a street calculated to frighten horses of ordinary gentleness, he is liable for the damages resulting therefrom. As a waterwheel in full view of a street or highway; House v. Metcalf, 27 Conn. 631; a derrick; Jones v. R. R. Co., 107 Mass. 261 ; farming utensils, as sleds; Judd v. Fargo, Id. 164; logs; Morse v. Richmond, 41 Vt 435: Foshay v. Glenhaven, 25 Wis. 288; as depositing plaster by the side of a highway: Dimmock v. Suffield, 30 Conn. 139; or anything calculated to frighten horses, or in any measure impair the safety of public travel; Wood on Nuisances, 297-302. So if a horse, being properly driven along a street or highway, becomes frightened at an animal at large there, as in this