Grant v. Moseley , 29 Ala. 302 ( 1856 )

STONE, J.

It is contended, that the plaintiff’s slave was where she had no right to be ; and from this the conclusion is attempted to be drawn, that the plaintiff cannot be heard to complain, notwithstanding the employees of defendant may not have exercised due diligence. This question was considered by this court in the case of the Steamboat Farmer v. McCraw, 26 Ala. 189 ; and it was there said, “ This rule must be understood with reference to faults which operated directly and immediately to produce the” result: that “ in all such cases, if the act causing the injury could have been prevented by the use of ordinary care, the failure to use it will render the party liable.” — See, also, on this point, Smith v. Smith, 2 Pick. 621 ; Beers v. Housatonic Railroad Co., 19 Conn. 566 ; Butterfield v. Forrester, 11 East, 60 ; Bridge v. Grand-Junction Railway Co., 3 Mees. & Wels. 244; Johnson v. Castleman, 2 Dana, 377; Cook v. Champ. Trans. Co., 1 Denio, 91.

But this question is not presented for our consideration. No charge was asked, so far as the record discloses, raising the question of negligence or fault -on the part of plaintiff’s slave. The charge asked was, “ If the jury believe that the death of the slave was the result of accident, and not of design, then the plaintiff could not recover.” Accident, in this connection, may be defined, chance, casualty, “ an event that takes place, * * without design.” — Webster’s Dictionary. As we understand the charge, it asserts the proposition, that duties omitted cannot constitute the negligence to which the law attaches accountability : that there must also be acts of commission. This view is erroneous.^ Diligence, when the law imposes it as a duty, implies that “ we shall do those things we ought to do, and leave undone those things we ought not to do,” It requires action, as well as forbearance to act. Accident repels the imputation of faults committed, but not of duties omitted.j,, ■

To vindicate the correctness of this criticism, we may here refer to a well-defined principle in equity jurisprudence, which rests on the idea that accident and negligence may co-exist. — Mock v. Cundiff, 6 Porter, 24 ; French v. Garner, 7 Porter, 549.

The supposition that, before responsibility can attach in this case, there must have been design, is equally indefensible. If the loss of the slave resulted from design, probably the civil injury would be merged in a criminal offense of a high grade.

The charge was correctly refused, and the judgment of the • circuit court is affirmed.