be sufficient to make the act a trespass." 98 On this subject, whether the defendant is liable for a technical trespass to personal property when no actual damage has been done, it is said in a Vermont case: "It is true, that, by the theory of the law, whenever an invasion of a right is established, though no actual damage be shown, the law infers a damage to the owner of the property and gives nominal damages. This goes upon the ground, either that some damage is the probable result of the defendant's act, or that his act would have effect to injure the other's rights, and would be evidence in future in favor of the wrongdoer. This last applied more particularly to unlawful entries upon real property, and to disturbance of incorporeal rights, when the unlawful act might have an effect upon the right of the party and be evidence in favor of the wrongdoer, if his right ever came in question. In these cases an action may be supported, though there be no actual damage done, because otherwise the party might lose his right. So, too, whenever one wantonly invades another's rights for the purpose of injury, an action will lie, though no actual damage be done; the law presumes damage, on account of the unlawful intent. But it is believed that no case can be found where damages have been given for a trespass to personal property, when no unlawful intent, or disturbance of a right or of possession, is shown, and when not only all probable, but all possible, damage is expressly disproved.' 98 Fouldes v. Willoughby, 8 M. & W. 540 (Eng.). 99 Paul v. Slason, 22 Vt. 231. CHAPTER IV. EXCUSABLE TRESPASSES-ACCIDENT-MISTAKE 20. Accident-English cases.-It has been thought that the older English cases did not allow inevitable accident to operate as an excuse in what would otherwise be a trespass. Weaver v. Ward,' decided in 1616, was a case where the plaintiff and defendant, members of a train band, were practicing with their firearms, and the plaintiff was hurt by the accidental discharge of the defendant's weapon. It was said, in language that gave rise to controversy as to its meaning, "no man shall be excused of his trespass except it may be judged utterly without his fault." Of course, there may have been negligence in this case on the part of the defendant. In Dickenson v. Watson," decided in 1682, ostensibly following Weaver v. Ward, it was said: "In trespass the defendant shall not be excused without unavoidable necessity." In Wakeman v. Robinson, decided in 1823, where the defendant ran over the plaintiff, the court, while holding that there was negligence sufficient to hold the defendant, observed that "if the accident happened entirely without default on the part of the defendant or blame imputa 11 Hob. 134 (Eng.). 2 Sir T. Jones 205 (Eng.). 31 Bing. 213 (Eng.). 3 ble to him, the action does not lie." In Holmes v. Mather,* decided in 1875, the defendant was out in a carriage and pair of horses, driven by the groom. The horses ran away, and in being guided around a corner to avoid running into a shop front, knocked down the plaintiff. The jury found that there was no negligence. It was held that the defendant, being entirely without blame, and using the best judgment of a reasonable man to avoid an accident, was not liable for a trespass. In Stanley v. Powell, decided in 1875, Denman, J., examined all the older English cases, and came to the conclusion that it was the settled English doctrine that in cases where negligence is disproved, and the defendant is engaged in a lawful act, an action will not lie for an injury resulting by accident from the defendant's act. 5 21. Same subject-American cases.-The rule thus finally stated with clearness in England had been anticipated in Massachusetts, in 1850, by Chief Justice Shaw. The case was that of Brown v. Kendall. Two dogs belonging to the plaintiff and defendant, respectively, were fighting. The defendant was endeavoring to separate them by beating them, the plaintiff meantime looking on. The defendant accidentally hit the plaintiff in the eye, severely injuring him. The court laid down this rule: "If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an 4 L. R. 10 Ex. 261 (Eng.). 5 (1891) 1 Q. B. 86 (Eng.). 66 Cush. 292 (Mass.), LEADING ILLUSTRATIVE CASES. 7 injury arising therefrom." In a later American case, it is said: "For a mere accident unmixed with negligence or fault on the part of the person to whom it is attributed, no action will lie. An accident, then, which furnishes no cause of action is an inevitable occurrence, not to be foreseen and prevented by vigilance, care, and attention, and not occasioned or contributed to, in any manner, by the act or omission of the company, its agents, employees, or servants." 22. Same subject-Meaning of accident.-The meaning of accident, as an excuse for an act that would otherwise be a trespass, is thus explained: "When we speak of unavoidable accident, in legal phraseology, we do not mean an accident which it was physically impossible in the nature of things for the defendant to have prevented: all that is meant is, that it was not occasioned in any degree, either remotely or directly, by the want of such care or skill as the law holds every man bound to exercise."8 A still fuller exposition of the meaning of inevitable accident is given in a leading Connecticut case: "An accident is an event which happens unexpectedly, from the uncontrollable operations of nature alone, and without human agency, as when a house is stricken and burned by lightning or blown down by tempest, or an event resulting undesignedly and unexpectedly from human agency alone, or from the joint operation of both; and a classification which will embrace all the cases of any authority may easily 7 Washington, C. & A. Turnpike v. Case, 80 Md. 36, 30 Atl. 571. 8 Dygert v. Bradley, 8 Wend. 469 (N. Y.). be made. In the first class are all those which are inevitable, or absolutely unavoidable, because effected or influenced by the uncontrollable operations of nature; in the second class those which result from human agency alone, but were unavoidable under the circumstances; and in the third class, those which were avoidable, because the act was not called for by any duty or necessity, and the injury resulted from the want of that extraordinary care which the law reasonably requires of one doing such a lawful act or because the accident was the result of actual negligence or folly, and might with reasonable care adapted to the exigency have been avoided. "Thus, to illustrate: If A were to burn his own house and thereby the house of B, he is liable to B for the injury; but if the house of A is burned by lightning, and thereby the house of B is burned, A is not liable; the accident belongs to the first class and was strictly inevitable or absolutely unavoidable. And if A should kindle a fire in a long unused flue in his own house which has become cracked without his knowledge, and the fire should communicate through the crack and burn his house, and thereby the house of B, the accident would be unavoidable under the circumstances, and belong to second class. But if A, when he kindled the fire, had reason to suspect that the flue was cracked, and did not examine it, and so was guilty of negligence, or knew that it was cracked and might endanger his house and that of B, and so was guilty of folly, he would be liable although the act of kindling the |