The quotations which were made above in favor of the strict doctrine from Sir T.Raymond, in Bessey v.Olliot, and from Sir William Blackstone, in Scott v.Shepherd, are both taken from dissenting opinions.In the latter case it is pretty clear that the majority of the court considered that to repel personal danger by instantaneously tossing away a squib thrown by another upon one's stall was not a trespass, although a new motion was thereby imparted to the squib, and the plaintiff's eye was put out in consequence.The last case cited above, in stating the arguments for absolute responsibility, was Leame v.Bray. The question under discussion was whether the action (for running down the plaintiff) should not have been case rather than trespass, the defendant founding his objection to trespass on the ground that the injury happened through his neglect, but was not done wilfully.There was therefore no question of absolute responsibility for one's acts before the court, as negligence was admitted; and the language used is all directed simply to the proposition that the damage need not have been done intentionally.
In Wakeman v.Robinson, another runaway case, there was evidence that the defendant pulled the wrong rein, and that he ought to have kept a straight course.The jury were instructed that, if the injury was occasioned by an immediate act of the defendant, it was immaterial whether the act was wilful or accidental.On motion for a new trial, Dallas, C.J.said, "If the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie....The accident was clearly occasioned by the default of the defendant.The weight of evidence was all that way.I am now called upon to grant a new trial, contrary to the justice of the case, upon the ground, that the jury were not called on to consider whether the accident was unavoidable, or occasioned by the fault of the defendant.There can be no doubt that the learned judge who presided would have taken the opinion of the jury on that ground, if he had been requested so to do." This language may have been inapposite under the defendant's plea (the general issue), but the pleadings were not adverted to, and the doctrine is believed to be sound.
In America there have been several decisions to the point.In Brown v.Kendall, Chief Justice Shaw settled the question for Massachusetts.That was trespass for assault and battery, and it appeared that the defendant, while trying to separate two fighting dogs, had raised his stick over his shoulder in the act of striking, and had accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.The case was stronger for the plaintiff than if the defendant had been acting in self-defence; but the court held that, although the defendant was bound by no duty to separate the dogs, yet, if he was doing a lawful act, he was not liable unless he was wanting in the care which men of ordinary prudence would use under the circumstances, and that the burden was on the plaintiff to prove the want of such care.
In such a matter no authority is more deserving of respect than that of Chief Justice Shaw, for the strength of that great judge lay in an accurate appreciation of the requirements of the community whose officer he was.Some, indeed many, English judges could be named who have surpassed him in accurate technical knowledge, but few have lived who were his equals in their understanding of the grounds of public policy to which all laws must ultimately be referred.It was this which made him, in the language of the late Judge Curtis, the greatest magistrate which this country has produced.
Brown v.Kendall has been followed in Connecticut, in a case where a man fired a pistol, in lawful self-defence as he alleged, and hit a bystander.The court was strongly of opinion that the defendant was not answerable on the general principles of trespass, unless there was a failure to use such care as was practicable under the circumstances.The foundation of liability in trespass as well as case was said to be negligence.The Supreme Court of the United States has given the sanction of its approval to the same doctrine. The language of Harvey v.
Dunlop has been quoted, and there is a case in Vermont which tends in the same direction. Supposing it now to be conceded that the general notion upon which liability to an action is founded is fault or blameworthiness in some sense, the question arises, whether it is so in the sense of personal moral shortcoming, as would practically result from Austin's teaching.The language of Rede, J., which has been quoted from the Year Book, gives a sufficient answer." In trespass the intent" (we may say more broadly, the defendant's state of mind) "cannot be construed." Suppose that a defendant were allowed to testify that, before acting, he considered carefully what would be the conduct of a prudent man under the circumstances, and, having formed the best judgment he could, acted accordingly.If the story was believed, it would be conclusive against the defendant's negligence judged by a moral standard which would take his personal characteristics into account.But supposing any such evidence to have got before the jury, it is very clear that the court would say, Gentlemen, the question is not whether the defendant thought his conduct was that of a prudent man, but whether you think it was. Some middle point must be found between the horns of this dilemma.
only when he fails to exercise the foresight of which he is capable, or exercises it with evil intent, that he is answerable for the consequences.
