Although, according to the common-law system of pleading, trespass vi et armis was the proper form of action in such case, the essential and only ground on which the action could rest was the negligence of the defendant in doing an act lawful in itself whereby the plaintiff was injured, and this is so as fully as if the plaintiff had framed his declaration in case for the negligence.
The difference between that case and the present is substantial and vital. In that case the battery was unintentional, and the defendant therein was guilty of no wrong save his negligence. Here the defendant intentionally perpetrated the battery, and the plaintiff’s right to recover was not based upon the negligence of the defendant at all.
[Omitting part of opinion.]
We find no error in the record.
The judgment below is affirmed with costs.
Petition for a rehearing overruled.
Judgement affirmed.[[221]]
AIKEN v. HOLYOKE STREET RAILWAY CO.
Supreme Judicial Court, Massachusetts, October 21, 1903.
Reported in 184 Massachusetts Reports, 269.
Tort by an infant against a street railway company for personal injuries. Writ dated July 6, 1898.
At a previous stage of this case, reported in 180 Mass. 8, the plaintiff’s exceptions were sustained by this court after a verdict had been ordered in the Superior Court for the defendant. At the new trial in the Superior Court before Lawton, J., the jury returned a verdict for the plaintiff in the sum of $5000. The defendant alleged exceptions, raising the questions stated by the court.