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Weaver v.
Ward.

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 (o). We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I. (p), 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 (q). 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."

Another case usually cited is Weaver v. Ward (r). 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

(0) O. W. Holmes 103.

(p) C. 88, § 6. "Si quis in ludo sagittandi vel alicuius exercitii iaculo vel huiusmodi casu aliquem occidat, reddat eum; legis enim est, qui inscienter peccat, scienter emendet."

(9) 6 Ed. IV. 7, pl. 18; O. W. Holmes 85; cf. 21 Hen. VII. 27, pl. 5, a case of trespass to goods which does not really raise the question.

() Hob. 134, A.D. 1616.

because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case (s), 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 (t).

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 (u). 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

(s) Dickeson v. Watson, Sir T. Jones 205, A.D. 1682. Lambert v.. Bessey, T. Raym. 421, a case of false imprisonment in the same period, cites the foregoing authorities, and Raymond's opinion certainly assumes the view that inevitable accident is no excuse even when the act is one of lawful self-defence. But then Raymond's opinion is a dissenting one: S. C. nom. Bessey v. Olliott, T. Raym. 467 being given in the former place alone and without explanation, it has apparently been some

P.

times taken for the judgment of the Court. At most, therefore, his illustrations are evidence of the notions current at the time.

(t) Underwood v. Hewson, 1 Strange 596, A.D. 1723 (defendant was uncocking a gun, plaintiff looking on). It looks very like contributory negligence, or at any rate voluntary exposure to the risk, on the plaintiff's part. But the law of negligence was then quite undeveloped.

(u) Scott v. Shepherd (1773) 2 W. Bl. 892, 3 Wils. 403.

K

Leame v.
Bray.

Cases

where exception allowed.

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.

Then comes Leame v. Bray (x), 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 (y). 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 (z). Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable.

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

(x) 3 East 593 (A.D. 1803).

(y) (1868) L. R. 3 H. L. at p. 341. (z) Sometimes the case of James v. Campbell (1832) 5 C. & P. 372, is cited in this connection. But not only is it a Nisi Prius case with nothing particular to recommend it, but it is irrelevant. The facts there alleged were that A. in a

quarrel with B. struck C. Nothing shows that A. would have been justified or excused in striking B. And if the blow he intended was not lawful, it was clearly no excuse that he struck the wrong man (p. 29 above, and see R. v. Latimer (1886) 17 Q. B. D. 359, 55 L. J. M. C. 135).

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" (a). 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 (b). 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 (c), 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 (d).

Mather.

Lastly, we have a decision well within our own time, Holmes v. which, if the judgments were not so expressed as to put it on a somewhat narrower ground, would be conclusive. In Holmes v. Mather (e) the defendant was out with a pair of horses driven by his groom.

(a) Davis v. Saunders, 2 Chitty

639.

(b) Gibbons v. Pepper, 1 Lord Raym. 38.

(c) 1 Bing. 213 (1823). The argument for the defendant seems to have been very well reasoned.

The horses ran away, and

(d) Hall v. Fearnley (1842) 3 Q. B. 919, 12 L. J. Q. B. 22. The line between this and Gibbons v. Pepper is rather fine.

(e) L. R. 10 Ex. 261, 44 L. J. Ex. 176 (1875).

Conclusion.

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" (ƒ). 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" (g).

Still Holmes v. Mather carries us a long way towards the position of The Nitro-glycerine Case and Brown v. Kendall. And, that position being in itself, as is submitted, the reasonable one, and nothing really authoritative standing against it, we seem justified in saying on the whole that these decisions-entitled as they are to our best consideration and respect, though not binding on English

(f) Bramwell B. at p. 267.

(g) L. R. 1 Ex. at pp. 286, 287.

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