The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune.But relatively to a given human being anything is accident which he could not fairly have been expected to contemplate as possible, and therefore to avoid.In the language of the late Chief Justice Nelson of New York: "No case or principle can be found, or if found can be maintained, subjecting an individual to liability for an act done without fault on his part....All the cases concede that an injury arising from inevitable accident, or, which in law or reason is the same thing, from an act that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility." If this were not so, any act would be sufficient, however remote, which set in motion or opened the door for a series of physical sequences ending in damage; such as riding the horse, in the case of the runaway, or even coming to a place where one is seized with a fit and strikes the plaintiff in an unconscious spasm.Nay, why need the defendant have acted at all, and why is it not enough that his existence has been at the expense of the plaintiff? The requirement of an act is the requirement that the defendant should have made a choice.But the only possible purpose of introducing this moral element is to make the power of avoiding the evil complained of a condition of liability.There is no such power where the evil cannot be foreseen. Here we reach the argument from policy, and I shall accordingly postpone for a moment the discussion of trespasses upon land, and of conversions, and will take up the liability for cattle separately at a later stage.
A man need not, it is true, do this or that act, the term act implies a choice,- -but he must act somehow.Furthermore, the public generally profits by individual activity.As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of what is at once desirable and inevitable upon the actor. The state might conceivably make itself a mutual insurance company against accidents, and distribute the burden of its citizens' mishaps among all its members.There might be a pension for paralytics, and state aid for those who suffered in person or estate from tempest or wild beasts.As between individuals it might adopt the mutual insurance principle pro tanto, and divide damages when both were in fault, as in the rusticum judicium of the admiralty, or it might throw all loss upon the actor irrespective of fault.The state does none of these things, however, and the prevailing view is that its cumbrous and expensive machinery ought not to be set in motion unless some clear benefit is to be derived from disturbing the status quo.State interference is an evil, where it cannot be shown to be a good.Universal insurance, if desired, can be better and more cheaply accomplished by private enterprise.The undertaking to redistribute losses simply on the ground that they resulted from the defendant's act would not only be open to these objections, but, as it is hoped the preceding discussion has shown, to the still graver one of offending the sense of justice.Unless my act is of a nature to threaten others, unless under the circumstances a prudent man would have foreseen the possibility of harm, it is no more justifiable to make me indemnify my neighbor against the consequences, than to make me do the same thing if I had fallen upon him in a fit, or to compel me to insure him against lightning.
I must now recur to the conclusions drawn from innocent trespasses upon land, and conversions, and the supposed analogy of those cases to trespasses against the person, lest the law concerning the latter should be supposed to lie between two antinomies, each necessitating with equal cogency an opposite conclusion to the other.
Take first the case of trespass upon land attended by actual damage.When a man goes upon his neighbor's land, thinking it is his own, he intends the very act or consequence complained of.He means to intermeddle with a certain thing in a certain way, and it is just that intended intermeddling for which he is sued. Whereas, if he accidentally hits a stranger as he lifts his staff in self defence, the fact, which is the gist of the action,--namely, the contact between the staff and his neighbor's head,--was not intended, and could not have been foreseen.It might be answered, to be sure, that it is not for intermeddling with property, but for intermeddling with the plaintiff's property, that a man is sued; and that in the supposed cases, just as much as in that of the accidental blow, the defendant is ignorant of one of the facts making up the total environment, and which must be present to make his action wrong.He is ignorant, that is to say, that the true owner either has or claims any interest in the property in question, and therefore he does not intend a wrongful act, because he does not mean to deal with his neighbor's property.But the answer to this is, that he does intend to do the damage complained of.One who diminishes the value of property by intentional damage knows it belongs to somebody.If he thinks it belongs to himself, he expects whatever harm he may do to come out of his own pocket.It would be odd if he were to get rid of the burden by discovering that it belonged to his neighbor.It is a very different thing to say that he who intentionally does harm must bear the loss, from saying that one from whose acts harm follows accidentally, as a consequence which could not have been foreseen, must bear it.
