Chapter VI: Section I: Negligence as a Ground of Liability

WEAVER _v._ WARD
IN THE KING’S BENCH, EASTER TERM, 1616.
_Reported in Hobart, 134._

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, &c., _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,[36] 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.[37]

BROWN _v._ KENDALL
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER TERM, 1850.
_Reported in 6 Cushing, 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.

Whether it was necessary or proper for the defendant to interfere in the fight between the dogs; whether the interference, if called for was in a proper manner, and what degree of care was exercised by each party on the occasion; were the subject of controversy between the parties, upon all the evidence in the case, of which the foregoing is an outline.

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 defendant further requested the judge to instruct the jury, that, “under the circumstances, if the plaintiff was using ordinary care and the defendant was not, the plaintiff could not recover, and that the burden of proof on all these propositions was on the plaintiff.”

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.”

“If, however, the plaintiff, when he met with the injury, was not in the exercise of ordinary care, he cannot recover, and this rule applies, whether the interference of the defendant in the fight of the dogs was necessary or not. If the jury believe, that it was the duty of the defendant to interfere, then the burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe, that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant.”

The jury under these instructions returned a verdict for the plaintiff; whereupon the defendant alleged exceptions.

SHAW, C. J. This is an action of trespass, _vi et armis_, brought by George Brown against George K. Kendall, for an assault and battery; and the original defendant having died pending the action, his executrix has been summoned in. The rule of the common law, by which this action would abate by the death of either party, is reversed in this Commonwealth by statute, which provides that actions of trespass for assault and battery shall survive. Rev. Sts. c. 93, § 7.

The facts set forth in the bill of exceptions preclude the supposition, that the blow, inflicted by the hand of the defendant upon the person of the plaintiff, was intentional. The whole case proceeds on the assumption, that the damage sustained by the plaintiff, from the stick held by the defendant, was inadvertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is responsible for it. We use the term “unintentional” rather than involuntary, because in some of the cases, it is stated, that the act of holding and using a weapon or instrument, the movement of which is the immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and hurting another is not within the purpose or intention of the party doing the act.

It appears to us, that some of the confusion in the cases on this subject has grown out of the long-vexed question, under the rule of the common law, whether a party’s remedy, where he has one, should be sought in an action of the case, or of trespass. This is very distinguishable from the question, whether in a given case, any action will lie. The result of these cases is, that if the damage complained of is the immediate effect of the act of the defendant, trespass _vi et armis_ lies; if consequential only, and not immediate, case is the proper remedy. Leame _v._ Bray, 3 East, 593; Huggett _v._ Montgomery, 2 B. & P. N. R. 446, Day’s Ed., and notes.

In these discussions, it is frequently stated by judges, that when one receives injury from the direct act of another, trespass will lie. But we think this is said in reference to the question, whether trespass and not case will lie, assuming that the facts are such, that some action will lie. These _dicta_ are no authority, we think, for holding, that damage received by a direct act of force from another will be sufficient to maintain an action of trespass, whether the act was lawful or unlawful, and neither wilful, intentional, or careless. In the principal case cited, Leame _v._ Bray, the damage arose from the act of the defendant, in driving on the wrong side of the road, in a dark night, which was clearly negligent, if not unlawful. In the course of the argument of that case (p. 595), Lawrence, J., said: “There certainly are cases in the books, where, the injury being direct and immediate, trespass has been holden to lie, though the injury was not intentional.” The term “injury” implies something more than damage; but, independently of that consideration, the proposition may be true, because though the injury was unintentional, the act may have been unlawful or negligent, and the cases cited by him are perfectly consistent with that supposition. So the same learned judge in the same case says (p. 597), “No doubt trespass lies against one who drives a carriage against another, whether done wilfully or not.” But he immediately adds, “Suppose one who is driving a carriage is negligently and heedlessly looking about him, without attending to the road when persons are passing, and thereby runs over a child and kills him, is it not manslaughter? and if so, it must be trespass; for every manslaughter includes trespass;” showing what he understood by a case not wilful.

We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared with evidence to show either that the _intention_ was unlawful, or that the defendant was _in fault_; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev. §§ 85–92. Wakeman _v._ Robinson, 1 Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Davis _v._ Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day’s Ed.) and notes; Vincent _v._ Stinehour, 7 Vt. 62. In applying these rules to the present case, we can perceive no reason why the instructions asked for by the defendant ought not to have been given; to this effect, that if both 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 the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.

In using this term, ordinary care, it may be proper to state, that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. A man, who should have occasion to discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less circumspection and care, than if he were to do the same thing in an inhabited town, village, or city. To make an accident, or casualty, or, as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed.

We are not aware of any circumstances in this case, requiring a distinction between acts which it was lawful and proper to do, and acts of legal duty. There are cases, undoubtedly, in which officers are bound to act under process, for the legality of which they are not responsible, and perhaps some others in which this distinction would be important. We can have no doubt that the act of the defendant in attempting to part the fighting dogs, one of which was his own, and for the injurious acts of which he might be responsible, was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie. Of if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we think the plaintiff cannot recover without showing that the damage was caused wholly by the act of the defendant, and that the plaintiff’s own negligence did not contribute as an efficient cause to produce it.

The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound 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 not in a strict but a popular sense. This is to be taken in connection with the charge afterwards given, that if the jury believed, that the act of interference in the fight was unnecessary (that is, as before explained, not a duty incumbent on the defendant), then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff, was on the defendant.

The court are of opinion that these directions were not conformable to law. If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff’s case, and the burden of proof was on the plaintiff to establish it. 2 Greenl. Ev. § 85; Powers _v._ Russell, 13 Pick. 69, 76; Tourtellot _v._ Rosebrook, 11 Met. 460.

Perhaps the learned judge, by the use of the term extraordinary care, in the above charge, explained as it is by the context, may have intended nothing more than that increased degree of care and diligence, which the exigency of particular circumstances might require, and which men of ordinary care and prudence would use under like circumstances, to guard against danger. If such was the meaning of this part of the charge, then it does not differ from our views, as above explained. But we are of opinion, that the other part of the charge, that the burden of proof was on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover, he takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant; the question of due care, or want of care, may be essentially connected with the main facts, and arise from the same proof; but the effect of the rule, as to the burden of proof, is this, that when the proof is all in, and before the jury, from whatever side it comes, and whether directly proved, or inferred from circumstances, if it appears that the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury, that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff fails to sustain the burden of proof, and is not entitled to recover.

_New trial ordered_[38]

STANLEY _v._ POWELL
IN THE QUEEN’S BENCH DIVISION, NOVEMBER 3, 1890.
_Reported in [1891] 1 Queen’s Bench, 86._

DENMAN, J. This case was tried before me and a special jury at the last Maidstone Summer Assizes.[39]

In the statement of claim the plaintiff alleged that the defendant had _negligently and wrongfully and unskilfully_ fired his gun and wounded the plaintiff in his eye, and that the plaintiff, in consequence, had lost his sight and suffered other damage. The defendant denied the negligence alleged. After the evidence on both sides, which was conflicting, had been heard, I left the three following questions to the jury: 1. Was the plaintiff injured by a shot from defendant’s gun? 2. Was the defendant guilty of negligence in firing the charge to which that shot belonged as he did? 3. Damages.

The undisputed facts were, that on Nov. 29, 1888, the defendant and several others were pheasant shooting in a party, some being inside and some outside of a wood which the beaters were beating. The right of shooting was in one Greenwood, who was of the party. The plaintiff was employed by Greenwood to carry cartridges and the game which might be shot. Several beaters were driving the game along a plantation of saplings towards an open drive. The plaintiff stood just outside a gate which led into a field outside the plantation, at the end of the drive. The defendant was walking along in that field a few yards from the hedge which bounded the plantation. As he was walking along a pheasant rose inside the plantation; the defendant fired one barrel at this bird, and, according to the evidence for the defendant, struck it with his first shot. There was a considerable conflict of evidence as to details; but the jury must, I think, be taken to have adopted the version of the facts sworn to by the defendant’s witnesses. They swore that the bird, when struck by the first shot, began to lower and turn back towards the beaters, whereupon the defendant fired his second barrel and killed the bird, but that a shot, glancing from the bough of an oak which was in or close to the hedge, and, striking the plaintiff, must have caused the injury complained of. The oak in question, according to the defendant’s evidence, was partly between the defendant and the bird when the second barrel was fired, but it was not in a line with the plaintiff, but, on the contrary, so much out of that line, that the shot must have been diverted to a considerable extent from the direction in which the gun must have been pointed in order to hit the plaintiff. The distance between the plaintiff and the defendant, in a direct line, when the second barrel was fired, was about thirty yards. The case for the plaintiff was entirely different; but I think it must be held that the jury took the defendant’s account of the matter, for they found the second question left to them in the negative. Before summing up the case to the jury, I called the attention of the parties to the doctrine which seemed to have been laid down in some old cases—that, even in the absence of negligence, an action of trespass might lie; and it was agreed that I should leave the question of negligence to the jury, but that, if necessary, the pleadings were deemed to have been amended so as to raise any case or defence open upon the facts with liberty to the court to draw inferences of fact, and that the damages should be assessed contingently. The jury assessed them at £100. I left either party to move the court for judgment; but it was afterwards agreed that the case should be argued before myself on further consideration, and that I should give judgment, notwithstanding that I had left the parties to move the court, as though I had originally reserved it for further consideration before myself.

Having heard the arguments, I am of opinion that, by no amendment that could be made consistently with the finding of the jury could I properly give judgment for the plaintiff. It was contended on his behalf that this was a case in which an action of trespass would have lain before the Judicature Acts; and this contention was mainly founded on certain _dicta_ which, until considered with reference to those cases in which they are uttered, seem to support that contention; but no decision was quoted, nor do I think that any can be found which goes so far as to hold, that if A. is injured by a shot from a gun fired at a bird by B., an action of trespass will necessarily lie, even though B. is proved to have fired the gun without negligence and without intending to injure the plaintiff or to shoot in his direction.

The jury having found that there was no negligence on the part of the defendant, the most favorable way in which it is now possible to put the case for the plaintiff is to consider the action as brought for a trespass, and to consider that the defendant has put upon the record a defence denying negligence, and specifically alleging the facts, sworn to by his witnesses, which the jury must be considered to have found proved, and then to consider whether those facts, coupled with the absence of negligence established by the jury, amount to an excuse in law.

The earliest case relied upon by the plaintiff was one in the year-book 21 Hen. 7, 28 A., which is referred to by Grose, J., in the course of the argument in Leame _v._ Bray, 3 East, 593, to be mentioned presently, in these words: “There is a case put in the year-book, 21 Hen. 7, 28 A., that where one shot an arrow at a mark which glanced from it and struck another, it was holden to be trespass.” Returning to the case in the year-book, it appears that the passage in question was a mere _dictum_ of Rede, who (see 5 Foss’ Lives of the Judges, p. 230) was at the time (1506) either a judge of the King’s Bench or C. J. of the Common Pleas, which he became in October in that year, in a case of a very different kind from that in question, and it only amounts to a statement that an action of trespass may lie even where the act done by the defendant is _unintentional_. The words relied on are, “_Mes ou on tire a les buts et blesse un home, coment que est incontre sa volonte, il sera dit un trespassor incontre son entent._” But in that very passage Rede makes observations which show that he has in his mind cases in which that which would be _prima facie_ a trespass may be excused. The next case in order of date relied upon for the plaintiff was Weaver _v._ Ward, decided in 1607. There is no doubt that that case contains _dicta_ which _per se_ would be in favor of the plaintiff, but it also contains the following summing up of the law applicable to cases of unintentional injury by acts which are _prima facie_ trespasses: “Therefore, no man shall be excused of a trespass ... except it may be judged utterly without his fault,” showing clearly that there may be such cases. That case, after all, only decided that where the plaintiff and defendant were skirmishing as soldiers of the train-band, and the one, “_casualiter, et per infortunium, et contra voluntatem suam_” (which must be translated “accidentally and involuntarily”) shot the other, an action of trespass would lie, _unless_ he could show that such involuntary and accidental shooting was done under such circumstances as utterly to negative negligence. Such cases may easily be supposed, in which there could be no two opinions about the matter; but other cases may, as the present case did, involve considerable conflicts of evidence and opinion which until recently a jury only could dispose of. The case of Gibbons _v._ Pepper, 4 Mod. 405, decided in 1695, merely decided that a plea merely showing that an accident caused by a runaway horse was _inevitable_, was a bad plea in an action of trespass, because, if _inevitable_, that was a defence under the general issue. It was a mere decision on the pleading, and laid down nothing as regards the point raised in the present case. The concluding words of the judgment, which show clearly the _ratio decidendi_ of that case, are these: “He should have pleaded the general issue, for if the horse ran away against his will he would have been found _not guilty_, because in such a case it cannot be said with any color of reason to be a battery in the rider.” The more modern cases of Wakeman _v._ Robinson and Hall _v._ Fearnley, lay down the same rule as regards the pleading point, though the former case may also be relied upon as an authority by way of _dictum_ in favor of the plaintiff, and the latter may be fairly relied upon by the defendant; for Wightman, J., in his judgment explains Wakeman _v._ Robinson thus: “The act of the defendant” (viz., driving the cart at the very edge of a narrow pavement on which the plaintiff was walking, so as to knock the plaintiff down) “was _prima facie_ unjustifiable, and required an excuse to be shown. When the motion in this case was first made, I had in my recollection the case of Wakeman _v._ Robinson. It was there agreed that an _involuntary_ act might be a defence on the general issue. The decision indeed turned on a different point; but the general proposition is laid down. I think the _omission to plead_ the defence here deprived the defendant of the benefit of it, and entitled the plaintiff to recover.”

But in truth neither case decides whether, where an act such as discharging a gun is voluntary, but the result injurious without negligence, an action of trespass can nevertheless be supported as against a plea pleaded and proved, and which the jury find established, to the effect that there was no negligence on the part of the defendant.

The case of Underwood _v._ Hewson, 1 Str. 596, decided in 1724, was relied on for the plaintiff. The report is very short. “The defendant was uncocking a gun, and the plaintiff standing to see it, it went off and wounded him; and at the trial it was held that the plaintiff might maintain trespass—Strange _pro defendente_.” The marginal note in Nolan’s edition of 1795, not necessarily Strange’s own composition, is this: “Trespass lies for an accidental hurt;” and in that edition there is a reference to Buller’s N. P., p. 16. On referring to Buller, p. 16, where he is dealing with Weaver _v._ Ward, I find he writes as follows: “So (it is no battery) if one soldier hurt another in exercise; but if he plead it he must set forth the circumstances, so as to make it appear to the court that it was inevitable, and that he committed no negligence to give occasion to the hurt, for it is not not enough to say that he did it _casualiter, et per infortunium, et contra voluntatem suam_; for no man shall be excused of a trespass, unless it be justified entirely without his default: Weaver _v._ Ward; and, therefore, it has been holden that an action lay where the plaintiff standing by to see the defendant uncock his gun was accidentally wounded: Underwood _v._ Hewson.” On referring back to Weaver _v._ Ward, I can find nothing in the report to show that the court held, that in order to constitute a defence in the case of a trespass it is necessary to show that the act was _inevitable_. If _inevitable_, it would seem that there was a defence under the general issue; but a distinction is drawn between an act which is inevitable and an act which is excusable, and what Weaver _v._ Ward really lays down is that “no man shall be excused of a trespass except it may be judged utterly without his fault.”

Day _v._ Edwards, D. & E. 5 T. R. 648 (1794), merely decides that where a man negligently _drives_ a cart against the plaintiff’s carriage, the injury being committed by the _immediate_ act complained of, the remedy must be trespass, and not case.

But the case upon which most reliance was placed by the plaintiff’s counsel was Leame _v._ Bray, 3 East, 593. That was an action of trespass in which the plaintiff complained that the defendant with force and arms drove and struck a chaise which he was driving on the highway against the plaintiff’s curricle, which the plaintiff’s servant was driving, by means whereof the servant was thrown out, and the horses ran away, and the plaintiff, who jumped out to save his life, was injured. The facts stated in the report include a statement that “the accident happened in a dark night, owing to the defendant driving his carriage on the wrong side of the road, and the parties not being able to see each other; and that if the defendant had kept his right side there was ample room for the carriages to have passed without injury.” The report goes on to state: “But it did not appear that blame was imputable to the defendant in any _other_ respect as to the manner of his driving. It was therefore objected for the defendant, that the injury _having happened from negligence_ and not wilfully, the proper remedy was by an action on the case, and not of trespass _vi et armis_; and the plaintiff was thereupon nonsuited.” On the argument of the rule to set aside the verdict the whole discussion turned upon the question whether the injury was, as put by Lawrence, J., at p. 596 of the report, immediate from the defendant’s act, or consequential only from it, and in the result the nonsuit was set aside. But it clearly appears from the report that there was evidence upon which the jury might have found negligence, and indeed the defendant’s counsel assumed it in the very objection which prevailed with Lord Ellenborough when he nonsuited the plaintiff. There is nothing in any of the judgments to show that if in that case a plea had been pleaded denying any negligence, and the jury had found that the defendant was not guilty of any negligence, but (for instance) that the accident happened wholly through the darkness of the night making it impossible to distinguish one side of the road from the other and without negligence on either side, the court would have held that the defendant would have been liable either in trespass or in case.

All the cases to which I have referred were before the Court of Exchequer in 1875, in the case of Holmes _v._ Mather, and Bramwell, B., in giving judgment in that case, dealt with them thus: “As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force _vi et armis_, trespass is the proper remedy (if there is any remedy), where the act is wrongful either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful. That is the effect of the decisions.”

This view of the older authorities is in accordance with a passage cited by Mr. Dickens from Bacon’s Abridgment, Trespass, I., p. 706, with a marginal reference to Weaver _v._ Ward. In Bacon the word “inevitable” does not find a place. “If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful” (by which I understand justifiable even if purposely done to the extent of purposely inflicting the injury, as, for instance, in a case of self-defence) “and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to show not only that the act complained of was accidental” (by which I understand, “that the injury was unintentional”), “but likewise that it was not owing to neglect or want of due caution.” In the present case the plaintiff sued in respect of an injury owing to the defendant’s negligence,—there was no pretence for saying that it was intentional so far as any injury to the plaintiff was concerned,—and the jury negatived such negligence. It was argued that nevertheless, inasmuch as the plaintiff was injured by a shot from the defendant’s gun, that was an injury owing to an act of force committed by the defendant, and therefore an action would lie. I am of opinion that this is not so, and that against any statement of claim which the plaintiff could suggest the defendant must succeed if he were to plead the facts sworn to by the witnesses for the defendant in this case, and the jury believing those facts, as they must now be taken by me to have done, found the verdict which they have found as regards negligence. In other words, I am of opinion that if the case is regarded as an action on the case for an injury by negligence the plaintiff has failed to establish that which is the very gist of such an action; if, on the other hand, it is turned into an action for trespass, and the defendant is (as he must be) supposed to have pleaded a plea denying negligence and establishing that the injury was accidental in the sense above explained, the verdict of the jury is equally fatal to the action. I am, therefore, of opinion that I am bound to give judgment for the defendant. As to costs, they must follow, unless the defendant foregoes his right.

_Judgment for the defendant._[40]

SULLIVAN _v._ OLD COLONY STREET RAILWAY
SUPREME JUDICIAL COURT, MASSACHUSETTS, NOVEMBER 30, 1908.
_Reported in 200 Massachusetts Reports, 303._

Tort. The first count in the declaration alleged that, while the plaintiff was a passenger on an electric car of the defendant, the car was derailed at Tiverton, owing to the defendant’s negligence, “whereby the plaintiff was jolted and in many ways injured externally and internally.”

At the trial, plaintiff testified substantially to the same effect as the allegations in the declaration. As to the derailment, he testified that it was violent and that he was much thrown about. The evidence for the defendant tended to show that there was practically no jar when the car left the rails at Tiverton.

At the close of the evidence plaintiff requested, among others, the following ruling:—

“1. Upon all the evidence the plaintiff is entitled to recover on the first count.”

The judge refused to so rule.

The judge instructed the jury, in part, as follows:—

“The only matters, then, of damages for you to consider are these: First, what was the effect upon the plaintiff of the jolts when the car was derailed? To what extent did they injure the plaintiff?”

Plaintiff excepted to the charge. Verdict for defendant.[41]

SHELDON, J. No question was made at the trial but that the defendant was liable for any injury done to the plaintiff by reason of its car having left the track. But if no injury was caused by this to the plaintiff, if he suffered no damage whatever from the defendant’s negligence, then he would not be entitled to recover. Although there has been negligence in the performance of a legal duty, yet it is only those who have suffered damage therefrom that may maintain an action therefor. Heaven _v._ Pender, 11 Q. B. D. 503, 507; Farrell _v._ Waterbury Horse Railroad, 60 Conn. 239, 246; Salmon _v._ Delaware, Lackawanna & Western Railroad, 19 Vroom, 5, 11; 2 Cooley on Torts (3d ed.), 791; Wharton on Negligence (2d ed.), sect. 3. In cases of negligence, there is no such invasion of rights as to entitle plaintiff to recover at least nominal damages, as in Hooten _v._ Barnard, 137 Mass. 36, and McAneany _v._ Jewett, 10 Allen, 151.[42] Accordingly, the first and second of the plaintiff’s requests for rulings could not have been given, and the rulings made were all that the plaintiff was entitled to.

_Exceptions overruled._[43]

HART _v._ ALLEN
SUPREME COURT, PENNSYLVANIA, OCTOBER TERM, 1833.
_Reported in 2 Watts, 114._

Action on the case against owners of a vessel.[44] Plaintiff put in evidence a bill of lading of chests of tea shipped on board defendant’s vessel; “to be delivered in good order, unavoidable accidents and the dangers of the river excepted....” Plaintiff also proved that the teas were delivered by defendants in a damaged state, owing to their having been wet. Defendants gave evidence that the boat, when on her passage up the river, was driven by a sudden squall of wind and snow sidewise, whereby the teas were wet and damaged; that she was well fitted for the voyage; that every exertion was made to save her; and that Samuel Johnston, the captain, was a man of experience. To rebut this the plaintiff gave evidence that Samuel Johnston was not an experienced boatman or pilot.

Judgment below for plaintiff. The original defendants brought error. One of the errors assigned was as follows:—

The court below erred in charging the jury, that although the accident in this case resulted from the act of God, and could not have been prevented by any human prudence or foresight; and although it would, in this respect, come within the exception that excuses the carrier in case of loss: still, if the crew of the boat was not sufficient, or if she was not under the control of a master or pilot sufficiently skilled to perform the duties corresponding to his station, the carrier cannot avail himself of the exception, nor excuse himself from responsibility to the owner, to the extent of the injury done to the goods. And also, in substance, that if the jury think that the boat was not fit for the voyage, or the master not competent, or the crew insufficient; they ought to find a verdict for the plaintiff, whatever might be their opinion as to the real cause of the upsetting of the boat.

GIBSON, C. J.: Had the judge said no more than that the carrier is bound to provide a carriage or vessel in all respects adequate to the purpose, with a conductor or crew of competent skill or ability, and that “failing in these particulars, though the loss be occasioned by the act of God, he shall not set up a providential calamity to protect himself against what _may_ have arisen from his own folly;” there would have been no room for an exception. But the cause was eventually put to the jury on a different principle: “though the accident resulted from the act of God,” it was said, “_and could not have been prevented by any human prudence or foresight_, and though it would in this respect otherwise have come within the exception that excuses the carrier in case of loss: still, if the crew of the office [?] were not sufficient, or if she were not under the control of a master or pilot sufficiently skilful to perform the duties correspondent to his station, the carrier cannot avail himself of the exception.” By this the jury were instructed, in accordance, as it was supposed, with the principle of Bell _v._ Reed and Beelor, 4 Binn. 127, that want of seaworthiness has the peculiar effect of casting every loss, from whatever cause, on the carrier, as a penalty, I presume, for his original delinquency, and not for its actual or supposed instrumentality in contributing to the disaster, which is admitted to have been produced, in this instance, by causes unconnected with the master or crew, and to have been of a nature which no human force or sagacity could control.

Does such a penalty necessarily result from the nature of the contract? A carrier is answerable for the consequences of negligence, not the abstract existence of it. Where the goods have arrived safe, no action lies against him for an intervening but inconsequential act of carelessness; nor can it be set up as a defence against payment of the freight; and for this plain reason, that the risk from it was all his own. Why, then, should it, in any other case, subject him to a loss which it did not contribute to produce, or give an advantage to one who was not prejudiced by it? It would require much to reconcile to any principle of policy or justice, a measure of responsibility which would cast the burthen of the loss on a carrier whose wagon had been snatched away by a whirlwind in crossing a bridge, merely because it had not been furnished with a proper cover or tilt to protect the goods from the weather. Yet the omission to provide such a cover would be gross negligence, but, like that imputed to the carrier in the case before us, such as could have had no imaginable effect on the event. A carrier is an insurer against all losses without regard to degrees of negligence in the production of them, except such as have been caused by an act of providence, or the common enemy: and why is he so? Undoubtedly to subserve the purposes, not of justice in the particular instance, but of policy and convenience: of policy, by removing from him all temptation to confederate with robbers or thieves—and of convenience, by relieving the owner of the goods from the necessity of proving actual negligence, which, the fact being peculiarly within the knowledge of the carrier or his servants, could seldom be done. Jones on Bail. 108, 109; 2 Kent, 59, 78. Such are the rule and the reason of it, and such is the exception. But we should enlarge the rule, or to speak more properly, narrow the exception far beyond the exigencies of policy or convenience, did we hold him an insurer against even the acts of providence, as a punishment for an abstract delinquency, where there was no room for the existence of a confederacy, or the operation of actual negligence; and to carry a responsibility, founded in no principle of natural equity beyond the requirements of necessity, would be gratuitous injustice. A delinquency which might have contributed to the disaster, such, for instance, as is imputable to the owner of a ship driven on a lee shore, for a defect in the rigging or sails, would undoubtedly be attended with different consequences; for as it would be impossible to ascertain the exact effect of the delinquency on the event, the loss would have to be borne by the delinquent on a very common principle, by which any one whose carelessness has increased the danger of injury from a sudden commotion of the elements, is chargeable with all the mischief that may ensue: as in Turberville _v._ Stamp, Skin. 681, where it was adjudged, that the negligent keeping of fire in a close would subject the party to all the consequences, though proximately produced by a sudden storm; and the same principle was held by this court in The Lehigh Bridge Company _v._ The Lehigh Navigation, 4 Rawle, 9. But it would be too much to require of the carrier to make good a loss from shipwreck, for having omitted to provide the ship with proper papers, which are a constituent part of seaworthiness, and the omission of them an undoubted negligence.

* * * * *

The first question, therefore, will be, whether the captain and crew of the boat had the degree of ability and skill thus indicated; and if it be found that they had not, then the second question will be, whether the want of it contributed in any degree to the actual disaster: but if either of these be found for the carrier, it will be decision [decisive?] of the cause. It seems, therefore, that ... the cause ought to be put, on these principles, to another jury.

_Judgment reversed, and a venire de novo awarded_.[45]