But when a man shoots at the butts and wounds a man, though it is against his will, he shall be called a trespasser against his intent."There is a series of later shooting cases, Weaver v.Ward, Dickenson v.Watson, and Underwood v.Hewson, followed by the Court of Appeals of New York in Castle v.Duryee, in which defences to the effect that the damage was done accidentally and by misfortune, and against the will of the defendant, were held insufficient.
In the reign of Queen Elizabeth it was held that where a man with a gun at the door of his house shot at a fowl, and thereby set fire to his own house and to the house of his neighbor, he was liable in an action on the case generally, the declaration not being on the custom of the realm, "viz.for negligently keeping his fire." "For the injury is the same, although this mischance was not by a common negligence, but by misadventure."
The above-mentioned instances of the stick and shooting at butts became standard illustrations; they are repeated by Sir Thomas Raymond, in Bessey v.Olliot, by Sir William Blackstone, in the famous squib case, and by other judges, and have become familiar through the textbooks.Sir T.Raymond, in the above case, also repeats the thought and almost the words of Littleton, J., which have been quoted, and says further: "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." Sir William Blackstone also adopts a phrase from Dickenson v.Watson, just cited:
"Nothing but inevitable necessity" is a justification.So Lord Ellenborough, in Leame v.Bray: "If the injury were received from the personal act of another, it was deemed sufficient to make it trespass"; or, according to the more frequently quoted language of Grose, J., in the same case: "Looking into all the cases from the Year Book in the 21 H.VII.down to the latest decision on the subject, I find the principle to be, 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 in trespass." Further citations are deemed unnecessary.
In spite, however, of all the arguments which may be urged for the rule that a man acts at his peril, it has been rejected by very eminent courts, even under the old forms of action.In view of this fact, and of the further circumstance that, since the old forms have been abolished, the allegation of negligence has spread from the action on the case to all ordinary declarations in tort which do not allege intent, probably many lawyers would be surprised that any one should think it worth while to go into the present discussion.Such is the natural impression to be derived from daily practice.But even if the doctrine under consideration had no longer any followers, which is not the case, it would be well to have something more than daily practice to sustain our views upon so fundamental a question; as it seems to me at least, the true principle is far from being articulately grasped by all who are interested in it, and can only be arrived at after a careful analysis of what has been thought hitherto.It might be thought enough to cite the decisions opposed to the rule of absolute responsibility, and to show that such a rule is inconsistent with admitted doctrines and sound policy.But we may go further with profit, and inquire whether there are not strong grounds for thinking that the common law has never known such a rule, unless in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction.
Conciliating the attention of those who, contrary to most modern practitioners, still adhere to the strict doctrine, by reminding them once more that there are weighty decisions to be cited adverse to it, and that, if they have involved an innovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to prove that the change was politic, I think I may assert that a little reflection will show that it was required not only by policy, but by consistency.I will begin with the latter.
The same reasoning which would make a man answerable in trespass for all damage to another by force directly resulting from his own act, irrespective of negligence or intent, would make him answerable in case for the like damage similarly resulting from the act of his servant, in the course of the latter's employment.
The discussions of the company's negligence in many railway cases would therefore be wholly out of place, for although, to be sure, there is a contract which would make the company liable for negligence, that contract cannot be taken to diminish any liability which would otherwise exist for a trespass on the part of its employees.
More than this, the same reasoning would make a defendant responsible for all damage, however remote, of which his act could be called the cause.So long, at least, as only physical or irresponsible agencies, however unforeseen, co- operated with the act complained of to produce the result, the argument which would resolve the case of accidentally striking the plaintiff, when lifting a stick in necessary self-defence, adversely to the defendant, would require a decision against him in every case where his act was a factor in the result complained of.The distinction between a direct application of force, and causing damage indirectly, or as a more remote consequence of one's act, although it may determine whether the form of action should be trespass or case, docs not touch the theory of responsibility, if that theory be that a man acts at his peril.
