All the cases to which I have referred were before the Court of Exchequer in 1875, in the case of Holmes v. Mather, and Bramwell, B., in giving judgment in that case, dealt with them thus: “As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy), where the act is wrongful either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful. That is the effect of the decisions.”
This view of the older authorities is in accordance with a passage cited by Mr. Dickens from Bacon’s Abridgment, Trespass, I., p. 706, with a marginal reference to Weaver v. Ward. In Bacon the word “inevitable” does not find a place. “If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful” (by which I understand justifiable even if purposely done to the extent of purposely inflicting the injury, as, for instance, in a case of self-defence) “and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to show not only that the act complained of was accidental” (by which I understand, “that the injury was unintentional”), “but likewise that it was not owing to neglect or want of due caution.” In the present case the plaintiff sued in respect of an injury owing to the defendant’s negligence,—there was no pretence for saying that it was intentional so far as any injury to the plaintiff was concerned,—and the jury negatived such negligence. It was argued that nevertheless, inasmuch as the plaintiff was injured by a shot from the defendant’s gun, that was an injury owing to an act of force committed by the defendant, and therefore an action would lie. I am of opinion that this is not so, and that against any statement of claim which the plaintiff could suggest the defendant must succeed if he were to plead the facts sworn to by the witnesses for the defendant in this case, and the jury believing those facts, as they must now be taken by me to have done, found the verdict which they have found as regards negligence. In other words, I am of opinion that if the case is regarded as an action on the case for an injury by negligence the plaintiff has failed to establish that which is the very gist of such an action; if, on the other hand, it is turned into an action for trespass, and the defendant is (as he must be) supposed to have pleaded a plea denying negligence and establishing that the injury was accidental in the sense above explained, the verdict of the jury is equally fatal to the action. I am, therefore, of opinion that I am bound to give judgment for the defendant. As to costs, they must follow, unless the defendant foregoes his right.
Judgment for the defendant.[[40]]
SULLIVAN v. OLD COLONY STREET RAILWAY
Supreme Judicial Court, Massachusetts, November 30, 1908.
Reported in 200 Massachusetts Reports, 303.
Tort. The first count in the declaration alleged that, while the plaintiff was a passenger on an electric car of the defendant, the car was derailed at Tiverton, owing to the defendant’s negligence, “whereby the plaintiff was jolted and in many ways injured externally and internally.”
At the trial, plaintiff testified substantially to the same effect as the allegations in the declaration. As to the derailment, he testified that it was violent and that he was much thrown about. The evidence for the defendant tended to show that there was practically no jar when the car left the rails at Tiverton.
At the close of the evidence plaintiff requested, among others, the following ruling:—
“1. Upon all the evidence the plaintiff is entitled to recover on the first count.”
The judge refused to so rule.
The judge instructed the jury, in part, as follows:—