Vincent v. Stinehour , 7 Vt. 62 ( 1835 )

The' opinion of the court was delivered by

Williams, Ch. J.

In this case the jury must have found, that the injury suffered by the plaintiff was the result of unavoidable accident, and that there was no want of prudence or care on the part of the defendant. They were instructed by the court, that if they found these to be the facts, their verdict must be for the defendant.

The plaintiff contends in this case, that the injury arose from the unlawful act of the defendant. This, however, is taking for granted the very point in dispute. If the act which occasioned the injury to the plaintiff was wholly unavoidable, and no degree of blame can be imputed to the defendant, the conduct of the defendant was not unlawful. From an examination of the case, we find the charge of the court was wholly unexceptionable. The principle of law, which is laid down conformable to the law, and is * by all the writers upon this subject, and which is gathered from and confirmed by the whole series of reported cases, is, that no one' can be made responsible, in an action of trespass, for consequences, where he could not have prevented those consequences by prudence and care. Thus it has been laid down, that if a horse, upon a sudden surprise, run away with his rider, and runs against a man and hurts him, this is no battery. Where a person, in doing an act which it is his duty to perform, hurts another, he is not guilty of battery. A man falling out of a window, without any imprudence, injures another — there is no trespass. A soldier, in exercise, hurts his companion — no recovery can be had against him. In the case of Gibbons vs. Pepper, 4 Mod. 405, it was distinctly decided, that if a horse runs away with his rider, against his will, and he could not have avoided it, and runs against another, it is no battery in the rider, and he can defend under.the general issue. In the case of Wakeman vs. Robinson, 2 Bing. 213, in trespass for driving against plaintiff’s horse, and .injuring him with shafts of a gig, it was considered a good defence, that the horse was frightened by the noisy and rapid approach of a butcher’s cast, and became ungovernable, so that the injury was occasioned by unavoidable accident. In the case of Goodman vs. Taylor, 5 Car. and Payne, 410, which was an action of trespass for an injury done to a horse by a poney and chaise running against it, evidence was given on the part of the defendant, that his wife was holding the poney by the bridle, when a punch and judy-show came by and frightened the poney, which run off with the chaise. It was held, that if true, this was a good defence on a plea of not guilty.

It has also been considered, that if a man is entirely deprived of the command of his will and actions, and occasions an injury, he is not accountable for the injury which he involuntarily occasions; as if, from motives of self-preservation, he should jump out of the window of a house on fire, and fall against another; or in endeavoring to save another from inevitable destruction, he should run against some one ; — or if he is deprived of all control over his will by idiocy, or permanent madness, and should injure another, it is .considered as an involuntary trespass, for which no recovery can be had. In the case of lunacy, it has been held, that a man is answerable in trespass for an injury which he occasions to another. This, however, is on the strength of authority alone. To prevent any abuse of this protection, a person is accounted negligent or careless, and blame is imputed to him, if he does no use an extraordinary degree of circumspection and prudence, greater than is commonly practiced, and if he might have prevented the accident. Therefore, where a person is doing a voluntary act, which he is under no obligation to do, he is held answerable for any injury which may happen to another, either by carelessness or accident. On this principle, the case of Underwood vs. Hewson, 1 Str. 596, was decided. The act of uncocking the gun was voluntary, not ' unavoidable; a greater degree of prudence was therefore required. The case of a man turning round, and knocking down another, whom he did not see — the shooting an arrow at a mark, which glanced — were of this class. The act was purely voluntary, not one which the person was required to do. In the case of Leame vs. Bray, 3 East. 593, it was decided only that trespass was the proper remedy, where the injury was immediate; that it was not necessary that the act should be wilful; that although the injury happened accidentally by misfortune, yet the defendant was responsible, where it was occasioned immediately by his act, when he was driving the wrong side of the road. In that case it is to be noticed that blame was imputable to the defendant. '

We have examined this case more particularly, as the highly respectable and learned counsel for the plaintiff, for whose opinion we entertain a great respect, has urged so strenuously that a party must in all cases be answerable for an injury occasioned by a horse which he is riding, and that the doctrines to the contrary, found in the elementary writers, are only the opinions^ of the writers, and not founded on adjudged or reported cases./'''The result of our ex-\ animation is, that we think there must be some blame, or want of care and prudence, to make a man answerable in trespass;1 and that where a horse takes a sudden fright, and there is no imprudence in the rider, either in managing the horse or in driving an unsafe horse, and the horse runs against another, and injures himq the trespass is wholly involuntary and unavoidable, for which ndj¿ action can be maintained. - 'And although a man is held responsible'* for injuries occasioned by his cattle, as was urged in the argument,' it is on the ground that blame is attached to him in not restraining them, that it is his duty to keep them from mischief, and make use of care and prudence proportioned to the necessity of the case. It is on the ground that no blame is attached to him, that he is not responsible for damages arising from the vicious propensity of domestic animals, unless he knew of such propensity, and neglects to take the proper precaution to prevent their injuring others.

Another question has been made in this case: — whether the judge should have'eharged the jury, that from the evidence contained in the deposition of Bascomb, the plaintiff was entitled to recover. Upon this subject it is only necessary to remark, that the deposition tended to prove the facts contended for by the defendant. It does not appear that it was the only- evidence in the case. The jury were to determine the facts, and it is clear that the court would not have been justified in saying to the jury, upon this evidence, the plaintiff was entitled to a verdict. The jury, as they believed or disbelieved the testimony of Bascom^ or taking it in connection with the other testimony, not detailed in the exceptions," might have come to the conclusion, that the injury to the plaintiff was the result of unavoidable accident, or that it arose from want of prudence, and returned their verdict accordingly. The court were not requested to express any opinion upon this deposition. It was wholly optional with them, whether to give an opinion upon the weight of the testimony, or as to what facts were proved. Their neglect to give this opinon can never be urged as a reason for reversing a judgment.

The judgment must therefore be affirmed.