8.—: Inevitable Accident.

Inevitable accident resulting from lawful act. In the cases we have just been considering the act by which the damage is caused has been specially authorized. Let us now turn to the class of cases which differ from these in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor’s part. For it is undoubted that if by failure in due care I cause harm to another, however innocent my intention, I am liable. This has already been noted in a general way. No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do.

It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the “consummate care” of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the class of cases where the facts are so given or determined as to exclude any negligence whatever.

Conditions of the inquiry. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed.

On principle such accident excludes liability. It may seem to modern readers that only one solution of the problem thus stated is possible, or rather that there is no problem at all. No reason is apparent for not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man’s hand. If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man’s death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man’s act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented. But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed.

Apparent conflict of authorities. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Judge O. W. Holmes has put it “acts at his peril.” Such seems to have been the early Germanic law, and such was the current opinion of English lawyers until the beginning of this century, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental jurisprudence; and this, although for us not conclusive or even authoritative, is worth considering whenever our own authorities admit of doubt on a point of general principle. And, what is more important for our purpose, the point has been decided in the sense here contended for by Courts of the highest authority in the United States. To these decisions we shall first call attention.

American decisions: The Nitro-glycerine Case. In The Nitro-glycerine Case the defendants, a firm of carriers, received a wooden case at New York to be carried to California. “There was nothing in its appearance calculated to awaken any suspicion as to its contents,” and in fact nothing was said or asked on that score. On arrival at San Francisco it was found that the contents (which “had the appearance of sweet oil”) were leaking. The case was then, according to the regular course of business, taken to the defendants’ offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its properties well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with “in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents.” The defendants admitted their liability as for waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building.

Doctrine of Supreme Court; no liability for accidental result of lawful act without negligence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage: and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident. “No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. . . . . The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own.”

Brown v. Kendall (Massachusetts). The Court proceeded to cite with approval the case of Brown v. Kendall in the Supreme Court of Massachusetts. There the plaintiff’s and the defendant’s dogs were fighting: the defendant was beating them in order to separate them, and the plaintiff looking on. “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 action was trespass for assault and battery. It was held that the act of the defendant in itself “was a lawful and proper act which he might do by proper and safe means;” and that if “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 the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie.” All that could be required of the defendant was “the exercise of due care adapted to the exigency of the case.” The rule in its general form was thus expressed: “If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom.”

Other American cases: contrary opinion in Castle v. Duryee (N. Y.). There have been like decisions in the Supreme Courts of New York and Connecticut. And these rulings appear to be accepted as good law throughout the United States. The general agreement of American authority and opinion is disturbed, indeed, by one modern case in the Court of Appeal of New York, that of Castle v. Duryee. But the conflicting element is not in the decision itself, nor in anything necessary to it. The defendant was the colonel of a regiment of New York militia, who at the time of the cause of action were firing blank cartridge under his immediate orders in the course of a review. The plaintiff was one of a crowd of spectators who stood in front of the firing line and about 350 feet from it. Upon one of the discharges the plaintiff was wounded by a bullet, which could be accounted for only by one of the men’s pieces having by some misadventure been loaded with ball cartridge. It appeared that one company had been at target practice an hour or two before, and that at the end of the practice arms had been examined in the usual way, and surplus ammunition collected. Moreover, arms had again been inspected by the commanding officers of companies, in pursuance of the colonel’s orders, before the line was formed for the regimental parade. The plaintiff sued the defendant in an action “in the nature of trespass for an assault.” A verdict for the plaintiff was ultimately affirmed on appeal, the Court being of opinion that there was evidence of negligence. Knowing that some of the men had within a short time been in possession of ball ammunition, the defendant might well have done more. He might have cleared the front of the line before giving orders to fire. The Court might further have supported its decision, though it did not, by the cases which show that more than ordinary care, nay “consummate caution”, is required of persons dealing with dangerous weapons. The Chief Judge added that, as the injury was the result of an act done by the defendant’s express command, the question of negligence was immaterial. But this was only the learned judge’s individual opinion. It was not necessary to the decision, and there is nothing to show that the rest of the Court agreed to it.

English authorities: cases of trespass and shooting. We may now see what the English authorities amount to. They have certainly been supposed to show that inevitable accident is no excuse when the immediate result of an act is complained of. Erskine said a century ago in his argument in the celebrated case of The Dean of St. Asaph (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that “if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for trespass, but he must answer in an action for everything he has broken.” And Bacon had said earlier to the same purpose, that “if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course: but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party’s mind and will”. Stronger examples could not well be propounded. For walking in one’s sleep is not a voluntary act at all, though possibly an act that might have been prevented: and the practice of archery was, when Bacon wrote, a positive legal duty under statutes as recent as Henry VIII.’s time, though on the other hand shooting is an extra-hazardous act. We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I., and in the arguments of counsel in a case in the Year-Book of Edward IV., where the general question was more or less discussed. Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Brown v. Kendall. But the decision was only that if A. cuts his hedge so that the cuttings ipso invito fall on B.’s land, this does not justify A. in entering on B.’s land to carry them off. And by Choke, C. J., it is said, not that (as Brian’s view would require) A. must keep his thorns from falling on B.’s land at all events, but that “he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out.”

Weaver v. Ward. Another case usually cited is Weaver v. Ward. The plaintiff and the defendant were both members of a trainband exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant’s piece. It is a very odd case to quote for the doctrine of absolute liability, for what was there holden was that in trespass no man shall be excused, “except it may be judged utterly without his fault;” and the defendant’s plea was held bad because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case, which professes to follow Weaver v. Ward, really departs from it in holding that “unavoidable necessity” must be shown to make a valid excuse. This in turn was apparently followed in the next century, but the report is too meagre to be of any value.

All these, again, are shooting cases, and if they occurred at this day the duty of using extraordinary care with dangerous things would put them on a special footing. In the celebrated squib case they are cited and more or less relied upon. It is not clear to what extent the judges intended to press them. According to Wilson’s report, inevitable accident was allowed by all the judges to be an excuse. But Blackstone’s judgment, according to his own report, says that nothing but “inevitable necessity” will serve, and adopts the argument of Brian in the case of the cut thorns, mistaking it for a judicial opinion; and the other judgments are stated as taking the same line, though less explicitly. For the decision itself the question is hardly material, though Blackstone may be supposed to represent the view which he thought the more favourable to his own dissenting judgment. His theory was that liability in trespass (as distinguished from an action on the case) is unqualified as regards the immediate consequences of a man’s act, but also is limited to such consequences.

Leame v Bray. Then comes Leame v. Bray, a comparatively modern case, in which the defendant’s chaise had run into the plaintiff’s curricle on a dark night. The defendant was driving on the wrong side of the road; which of itself is want of due care, as every judge would now tell a jury as a matter of course. The decision was that the proper form of action was trespass and not case. Grose J. seems to have thought inevitable accident was no excuse, but this was extra-judicial. Two generations later, in Rylands v. Fletcher, Lord Cranworth inclined, or more than inclined, to the same opinion. Such is the authority for the doctrine of strict liability. Very possibly more dicta to the same purpose might be collected, but I do not think anything of importance has been left out. Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable.

Cases where exception allowed. On the other hand we have a series of cases which appear even more strongly to imply, if not to assert, the contrary doctrine. A. and B. both set out in their vessels to look for an abandoned raft laden with goods. A. first gets hold of the raft, then B., and A.’s vessel is damaged by the wind and sea driving B.’s against it. On such facts the Court of King’s Bench held in 1770 that A. could not maintain trespass, “being of opinion that the original act of the defendants was not unlawful”. Quite early in the century it had been held that if a man’s horse runs away with him, and runs over another man, he is not even prima facie a trespasser, so that under the old rules of pleading it was wrong to plead specially in justification. Here however it may be said there was no voluntary act at all on the defendant’s part. In Wakeman v. Robinson, a modern running-down case, the Court conceded that “if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie;” thinking, however, that on the facts there was proof of negligence, they refused a new trial, which was asked for on the ground of misdirection in not putting it to the jury whether the accident was the result of negligence or not. In 1842 this declaration of the general rule was accepted by the Court of Queen’s Bench, though the decision again was on the form of pleading.

Holmes v. Mather. Lastly, we have two decisions well within our own time which are all but conclusive. In Holmes v. Mather the defendant was out with a pair of horses driven by his groom. The horses ran away, and the groom, being unable to stop them, guided them as best he could; at last he failed to get them clear round a corner, and they knocked down the plaintiff. If the driver had not attempted to turn the corner, they would have run straight into a shop-front, and (it was suggested) would not have touched the plaintiff at all. The jury found there was no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was argued, on the authority of the old cases and dicta, that a trespass had been committed. The Court refused to take this view, but said nothing about inevitable accident in general. “For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid”. Thus it seems to be made a question not only of the defendant being free from blame, but of the accident being such as is incident to the ordinary use of public roads. The same idea is expressed in the judgment of the Exchequer Chamber in Rylands v. Fletcher, where it is even said that all the cases in which inevitable accident has been held an excuse can be explained on the principle “that the circumstances were such as to show that the plaintiff had taken that risk upon himself”.

Stanley v. Powell. More lately, in Stanley v. Powell, Denman J. came, on the English authorities alone, to the conclusion above maintained, namely that, where negligence is negatived, an action does not lie for injury resulting by accident from another’s lawful act.

Conclusion. These decisions seem good warrant for saying that the principle of The Nitro-glycerine Case and Brown v. Kendall is now part of the common law in England as well as in America. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself under the form of determining whether the particular circumstances exclude liability for an act or consequence which is at first sight wrongful. The same remark applies, to some extent, to the class of cases which we take next in order.