Brown v. Collins

53 N.H. 442 | N.H. | 1873

Doe, J.

It is agreed that the defendant was in the use of ordinaw care and skill in managing his horses, until they were frightened; a£j ííiaí they then bvaími unmanageable, and ran against and brok j.<vit on pfinnu i'":; land. It is not explicitly stated that the dele <«¡, a ni was without aetusd fault, — that he was not guilty of any malice >>< unreasonable unsk lluiuess or negligence ; but it is to be inferred Cuff tlie fact was so s and wo decide the case on that ground. We take ¡hr case as one where, without actual fault in the defendant, his lior/e?. broke from his control, ran away with him, went upon the plaintiff’;; land, and did damage there, against the will, intent, and desire of the defendant.

Sir Thomas Xlaymontl’s report of Lambert & Olliot v. Bessey ( T Itaym. 421) and Bessey v. Olliot & Lambert (T. Eaym. 467) is, “Th question was this : A gaoler takes from the bailiff a prisoner arrea,led by him out of the hiiliffls jurisdiction, Whether the gaoler be liable to an action of false imprisonment? and the judges of the common plea:; did all hold that ho was ; and of that opinion I am, for these reasons.

“1. In all civil acts, the law doth not so much regard the intern the actor, as the loss and damage of the party suffering; and th fore Mich. 6 JE. 4. 7. a. pi. 18. Trespass quare vi armis clan fregit, Sp herbam suam pedibus calcando eonsumpsit in six aeres. I ■ ; defendant pleads that he hath an acre lying next the said six acr and upon it a hedge of thorns, and he cut the thorns, and they, i •, invito, fell upon the plaintiff’s land, and the defendant took them >ii as soon as he could, which is the same trespass; and the plaintiff .. inurred; and adjudged for the plaintiff; for though a man doth a Is rful thing, yet, if any damage do thereby befall another, be shall ansv i for it, if he could have avoided it. As if a man lop a tree, and fu houghs fall upon another, ipso invito, yet an action lies. If a m shoot at huts, and hurt another unawares, an action lies. I have la <’ through which a river runs to your mill, and I lop the fallows grownn, upon the river side, which accidentally stop the water, so as your m'.h is hindered, an action lies. If I am building my own house, and y piece of timber falls on my neighbor’s bouse, and breaks part of it an action lies. If a man assault me, and I lift up my staff to defeat mvsolf, and, in lifting it up, bit another, an action lies by that person, and yet I did a lawful thing. And the reason of all those cases i.:. because lie that is damaged ought to he recompensed. But oílienA n it is in criminal cases, for there actu$ non facit reum nisi mens sit rea.

"Mich. 23. Car. 1. B. R.—Stile 72. Guilbert versus Slone. Trespass for entering his close, and taking away his horse. The defendant pleads, that lie, for fear of his life, by threats of twelve men, went into i he plaintiff’s house, and took the horse. The plaintiff demurred ; and adjudged for the plaintiff, because threats could not excuse the defemk ant, ¿hd make satisfaction to re plaintiff.

“^■b. 134, Weaver versus iA. r Trespass of assault and battery. The dcfc^fcant pleads, that he was «I. ined soldier in London, and he and the Wnintiff were skirmishing with their company, and the defendant, with! ds musket, casmliLr, <† per infortunium contra voluntatem suam in discharging of his gun hurt the plaintiff; and resolved no good plea. | Bo here, though the defendant knew not of the wrongful taking of plaintiff, yet that will not make any recompense for the wrong 'idaintiff hath sustained. * * But the three other judges resolv that the defendant, the gaoler, could not be charged, because he co not have notipe whether the prisoner was legally arrested or not.”

In Fletcher v. Rylands^* (L. R. 3 H. L. 330), Lord Cranwortii said “ In considering whether a defendant is liable to a plaintiff for dam; which the plaintiff may have sustained, the question in general is whether the defendant has acted with due care and caution, but whet' j ;s acts have occasioned the damage. This is all well explained j io old case of Lambert v. Bessey, reported by Sir Thomas Raym< (Sir T. Raym. 421). And the doctrine is founded on good sense. ! when one person, in managing his own affairs, causes, however in cently, damage to another, it is obviously only just that he should the party to suffer.”

Thd head-note of Weaver v. Ward, Hob. 134, is,—“ If one trail coldier wound another, in skirmishing for exercise, an action of t pass will lie, unless it shall appear from the defendant’s plea that was guilty of no negligence, and that the injury was inevitable.” 1 reason of the decision, as reported, was this: “ For though it w \breed, that if men tilt or tourney in the presence of the king, o. wo masters of defence playing their prizes kill one another, that 1 diall be no felony; or if a lunatic kill a man, or the like ; beca felon", must be done animo felinico; yet in trespass, which tends o io g> • i damages according to hurt or loss, it is not so; and there! /if a lunatic hurt a man, he shall be answerable in trespass ; and tin - ¡oro n :man shall be excused of a trespass (for this is the nature mse, and not of a justification, prout ei bene licuitj, excep be judged utterly without his fault; as if a man by force i | my hand and strike you ; or if here the defendant had said that' (plaintiff ran cross his piece when it was discharging; or had set fta the case: with the circumstances, so as it had appeared to the' c¿ , that it had been inevitable, and that the defendant had committed j negligence to give occasion to the hurt.”

1 There may be some ground to argue that “ utterly without his fan “ inevitable,” and “no negligence,” in the sense intended in that c . mean no more than the modern phrase “ ordinary and reasonable e j and prudence; ” and that, in such a case, at the present time, to h i a plea good that alleges the exercise of reasonable care, without ting forth all “ the circumstances ” or evidence sustaining the pi would be substantially in compliance with the law of that case, i , allowance being made for the difference of legal language used^at ferent periods, and the difference in the forms of pleading. B drift of- the ancient English authorities on the law of torts sef differ materially from the view now prevailing in this country.

. «•' ly« in England, there seems to have been no well-defined test of ax - u ; enable tort. Defendants were often held liable “ because,” as j iuy ' x«.ad says, a he that is damaged ought to be recompensed ; ” and n>'<: tuse, upon some clearly stated principle of law founded on acted , : culpability, public policy, or natural justice, he was entitled to com- | , '¡yvasation from the defendant. The law was supposed to regard “ íík j low and damage of the party suffering,” more than the negligumc ¡¡ a¡D blameworthiness of the defendant: but how much more it regate <" ' >i « former than the latter, was a question not settled, and very liiiil.j | investigated. “ The loss and damage of the party suffering,” if w«!t- ¡ out relief, would be a hardship to him; relief compulsorily furnish» u b> ¡he other party would often be a hardship to him: when and • , fi*'‘j£loss and damage” should, and when and why they should i.m, j be transferred from one to the other, by process of law, were ptei- ,¡ lento not solved in a philosophical manner. Tliei-e were precedent-;, 'j established upon superficial, crude, and undigested notions; but no ! application of the general system of legal reason to this subject. | Dr. Holmes says, — “ It may safely be stated that all the more anciem examples are traceable to conceptions of a much ruder sort (than acnjfaub ), and in modern times to more or less definitely thought-out viovu of public policy. The old writs in trespass did not allege, nor war- if ueci-ssary to show, anything savoring of culpability. It was enough ího;• , o certain event had happened, and it was not even necessary that the act i; rshi.'üld be done intentionally, though innocently. An accidental bhnv w o a us good a cause of action as an intentional one. On the other hand, xDim, as in Rylands v. Fletcher, modern courts hold a man liable for i h ‘ x-v a ie of water from a reservoir which he has built upon his lanu, a f> r i b,e escape of cattle, although he is not alleged to have been negligent, ¡ *h< do not proceed upon the ground that there is an element of cuíj if i bfby’ in making such a reservoir, or in keeping cattle, sufficient ¡o ¡ te “ go the defendant as soon as a damnum occurs,”but on the princnD 1 tbiii, jit is politic to make those who go into extra-hazardous employjj take the risk on their own shoulders.” He alludes to the fate ¡j th:u :c therejis no certainty what will be thought extra-liazardous L j! curb tin jurisdiction at a certain time,” but suggests that many pm-(J Uoiifar instances point to the general principle of liability for the con(¡sequences of extra-hazardous undertakings as the tacitly assumed ; ground of decision. 7 Am. Law Rev. 652, 653, 662; 2 Kent Com. (1D¡h ed.) 561, n. 1; 4 id. 110, n. 1. If the hazardous nature ,* ( things or of acts is adopted as the test, or one of the tests, and dvr English authorities are taken as the standard of what is to be regarded ay hazardous, “ it will bo necessary to go the length of saying that ->n 'ovv.'eitef real property is liable for all damage resulting to his neigh ,'boiuY', property from anything done upon his own land” (MellishD: jíU’gnfcont in Fletcher v. Rylands, L. R. 1 Ex. 272), and that an indii¡vMuílfis answerable “ who, for his own benefit, makes an improvement (i n h'lj own land, according to his best skill and diligence, and i *eing it will produce any injury to his neighbor, if he therebv tmvdttingly injure his neighbor ” — Gibbs, G. J., in Sutton v. Clarke, 6 Taunt. 44, approved by Blackburn, J., in Fletcher v. Rylands, L. R. 1 Ex. 286. If danger is adopted as a test, and the English authorities ! nru abandoned, the fact of danger, controverted in each case, will pro- I sent a question for the jury, and expand the issue of tort or no tort, . inte a question of reasonableness in a form much broader than has been generally used ; or courts will be left to devise tests of peril, ujti»*/varving influences of time and place that may not immediately produce a uniform, consistent, and permanent rule. r

( If would seem that some of the early English decisions were based ;-¡view as narrow as that which regards nothing but the hardship u" the party suffering;” disregards the question whether, by Nans-ring the hardship to the other party, anything more will be done \n substitute one suffering party for another; and does not consider w.iat legal reason can be given for relieving the party who has suffered, bj making another suffer the expense of his relief. Eor some of those decisions, better reasons may now be given than were thought of whew the decisions were announced : but whether a satisfactory test of an actionable tort can be extracted from the ancient authorities, and whether the few modern cases that carry out the doctrine of those authorities as far as it is carried, in Fletcher v. Rylands — 3 H. & C. 14; L. R. 1 Ex. 265; L. R. 3 H. L. 330; L. R. (Phil, ed.) 3 Ex. ob2—can be sustained, is very doubtful. The current of American authority is very strongly against some of the leading English eases..;, One of the strongest presentations of the extrema English view is by Blackburn, J., who says, in Fletcher v. Rylands (L. R. 1 Ex. 279, 280, 281, 282),—“ We think that the true rule of law is, that the perron who for his own purposes brings on his lands, and collects and keeps t there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the . [ damage which is thfe natural consequence of its escape. He can ex- j cuse himself by showing that the escape was owing to the plaintiff”s default; or perhaps that the escape was the consequence of vis viiajor, or the act of God ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as a iOve stated, seems, on principle, just. The person whose grass or com G eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar J is invaded by the filth of his neighbour’s privy, or whose habitation is! nmde unhealthy by the fumes and noisome vapors of his neighbour’s! alkali works, is damnified without any fault of his own ; and it spins! but reasonable and just that the neighbour, wlm-uas brought something on his own property which was not naturally there, harmless tVotl ersj so long as it is confined to his own property, but which he knowsVto hof mi.'cliievous if it gets on his neighbour’s, should be obliged to makafgnod j tlr damage which ensues if he does not succeed in confining itfo hit) ov; t property. But for his act in bringing it there no mischief Icouid. kin a accrued, and it seems but lust that he í >1(1. t n keep! if pero so that no mischief may accrue, or answer for the natural a-,.;Scipated consequences. And upon authority, this we thinl; n f.,¡ fished to be the law, whether the things so brought be board 5 -ft,.,]or, or filth, or stenches. The case that has most commonly curred, and which is most frequently to be found in the books, in si: L,;., j obligation of the owner of cattle which he has brought on his land vent their escaping and doing mischief. The law, as to thqm,; ><;! aij pe perfectly settled from early times: the owner must keep the th ¡peril, or he will be answerable for the natural consequences of ’• L° jipe, — that is with regard to tame beasts, for the grass they cm ’ 1 inple upon, though not for any injury to the person of othera, f ancestors have settled that it is not the general nature of him ;; pr hi' to> to l) Cim †0 kick, or bulls to gore (or he might have added, dogs to bite) — .' >;, the owner knows that the beast has a vicious propensity to k n, he will be answerable for that too. * * In these latter aik';.,, (relating to animals called mischievous or ferocious), the r consideration was damage to the person; and what was dm.id.3k, that where it was known that hurt to the person was the n;¿¡r.„aj .(sequence of the animal being loose, the owner should be reopenyk f!iejin damages for such hurt, though where it was not known ;<» he n, l ri(,jthe owner was not responsible for such damages; but whe¡ eating grass or other ordinary ingredients in d;< like "AO ieasiun, the natural consequence of the escape, the rule as to k'-epNg p,nage is. asant. ¡P, the animal is the same. * * There does not appear to by n difference, in principle, between the extent of the duty cast on him v, brings cattle on his land to keep them in, and the extent of tin -lie-imP°scd on him who brings on his land water, filth, or stencluraj other thing, which will, if it escape, naturally do damage, fu , í v¡i\t their escaping and injuring his neighbour.” "

|his seems to be substantially an adoption of the early authc.- k < : iilan extension of the ancient practice of holding the defendant t¡1 fióme cases, on the partial view that regarded the misfortune 7¡¡¿intiff upon whom a damage had fallen, and required no legal « transferring the damage to the defendant. The ancient rul jilt a person in whose house, or on whose land, a fire accidi : k ¡¡•ginated, which spread to' his neighbor’s property and destro * : ¡Hist make good the loss. Filliter v. Phippard, 11 A. & E. (N. S. > k M,i ; Tubervil v. Stamp, 1 Comyns 32—S. C., 1 Salk. 13; Com. k ) J Ron upon the ease for Negligence (A 6.) ; 1 Arch. N. P. 539; Flet - k. *1 Ji/lands, 3 H. & C. 790, 793; Russell v. Fabyan, 34 N. H. 21'k ni inquiry was made into the reason of putting upon him his nek;: k ,;>s as well as his own. The rule of such cases is applied, by .1 UN, to everything which a man brings on his land, which wil ne, naturally do damage. One result of such a doctrine i ’ irj one building a fire on his own hearth, for necessary pun th the utmost care, does so at the peril, not only of losing h: use,but of being irretrievably ruined if a spark from his cl s, .arts (.conflagration which lays waste the neighborhood. “In c iO; i h(il ifiict j lb. the rule, as laid down in the English cases, is a class of ca&un ;!i(. ;f- i :• :co to damage from fire communicated from the adjoining prL , es. Eire, like water or steam, is likely to produce mischief |f u ¡capes and goes beyond control; and yet it has never been holes iíj 0'iuntry that one building- a fire upon his own premises can! ifidis liable if it escapes upon his neighbor’s premises, and does 'Te-fe without proof of negligence.” Loses v. Buchanan, 51 NJ y "

. . iy;«-rything that a man can bring on his land is capable of escaping^__ mbv.t bis Will, and without his fault, with or without assistance^’ju mm form, solid, liquid, or gaseous, changed or unchanged by w1G aimf -rming processes of nature or art, — and of doing damage-after jfs capí. Moreover, if there is a legal principle that makes a man lia\qe s the natural consequences of the escape of things which he briiLg : hie land, the application of such a principle cannot be limitedu0 use things: it must be applied to all his acts that disturb the orij¿|(iaj[ ler of creation; or, at least, to all things which he undertaki* -:scss or control anywhere, and which were not used and enjoylS ju ¡ai ir called the natural or primitive condition of mankind, wliatev-Gr at may have been. This is going back a long way for a standard 0f >;al rights, and adopting an arbitrary test of responsibility that r i aids all degrees of danger, pays no heed to the essential clement; ,y jtual fault, puts a clog upon natural and reasonably necessary use fitter, and tends to embarrass and obstruct much of the work wl , !sec?us to be man’s duty carefully to do. The distinction made iird Cairns — Rylands v. Fletcher, L. R. 3 H. L. 330 — between a na I aiui a non-natural use of laud, if he meant anything more than 1>,., Terence between a reasonable use and an unreasonable one, is ablished in the law. Even if the arbitrary test were applied <>nl;]J mgs which a man brings on his land, it would still recognizbú||1G cubar rights of savage life in a wilderness, ignore the rights gromnw t of ú civilized state of society, and make a distinction not warrailG(t the enlightened spirit of the common law: it would impose a penary ion efforts, made in a reasonable, skilful, and careful manner, to %e ov< ;i condition of barbarism. It is impossible that legal principo u t> ow so serious an obstacle in the way of progress and impro,-G. cut.. Natural rights are, in general, legal rights; and the rights 0f rilization are, in a legal sense, as natural as any others. “Mos! e rights of property, as well as of person, in the social state, are solute but relative” — Loses v. Buchanan, 51 N. Y. 485 ; and, if n or were in any other than the social state, it is neither necessary i ,, peuient that they should now govern themselves on the theory ü ,¡ . ey ought to live in some other state. The common law does ¡;ivt ually establish tests of responsibility on any other basis than<||lf. opriety of their living in the social state, and the relative and quiiffed aractor of the rights incident to that state.

In Fletcher v. Rylands — L. R. 1 Ex. 286, 287 — Mr. Justice 3lacj'¡ - rn, commenting upon the remark of Mr. Baron Martin, “ thac, wlv^u damage is done to personal pro, either upon land or at sea, 1 he- m __ iiio damage to render him legally leopoiisible doubt true; and, an was pointed cut by Mr • oven to the person, by epllísmií] be .negligenct' in the party doing says,This is no Moiífch during his argu-l ment before us, this lo not confined to cases of collision, for ¡here are] many cases in which proof of negligence is esseutb I, as, for insí mice, where an uiiaily horse gets on the footpath of a public street and kill a passenger — Hammack v. White, 11 C. B. N. S. 588, 31 L. J. (C. IkV 129; or where a person in a dock is struck by the falling of a hale oi\ otfon whióh the defendant’s servants are lowering — Scott v. L'uhIoí-LWr Company, 3 H. & C. 596, 35 L. J. (Ex.) 17, 220 ; and many other C nilar cases may be found. But we think these°cases distinguishable ¡••m tlie present. Traffic on the highways, whether by land or sea, "j./iiiof. be conducted without exposing- those whose persons or property . neer it to some inevitable risk; and that being so, those who go ¡o die highway, or have their property adjacent to it, mtty well be held, so subject to their taking upon themselves the risk of injury fronri^ revitable danger;, and persons who, by the license of the owner,; ; '> ear to warehouses where goods are being raised or lowered, eerily do so subject tq the inevitable risk of accident. In neither case, therefore, can they recover without proof of -want of care or skill occasioning tlie accident; and it is believed that all tlie eases in which -'inevitable accident has been held an excuse for what, prima fade, was a trespass, can be explained on the same principle, viz., that tlie circumstances were such as to show that the plaintiff had taken tliat risk upon liimself.” This would be authority for bolding, in the present case, that the plaintiff, by having his post near the street, took upon hiniself the risk of its being- broken by an inevitable accident carrying n traveller off the street.But such a doctrine would open more questions, and more difficult ones, than it would settle. At what distance from a highway would ail object bo near it ? What part of London is not near a street? And then, as the defendant had as good a right to bo at home with his horses as to be in tlie highway, wliy might not his neighbor, by electing to live in an inhabited country, as well be held to take upon liimself the risk of- an inevitable accident happening by reason of the country being inhabited, as to assume a highway rislj by living near a road ? If neighborhood is the test, who are a man? neighbors hut the whole human race ? If a person, by remaining ir England, is held to take upon himself one class of the inevitable dangers of that country because lie could avoid that class by migrating tc a region of solitude, wliy should lie not, for a like reason, also be líele to expose liimself voluntarily to other classes of tlie inevitable dangers of that country ? And where does this reasoning end ?

It is not improbable that tlie rules of liability for damage done by brutes or by fire, found in the early English cases, were introduced, b; sacerdotal influence, from what was supposed to be tlie Roman or the Hebrew law. 7 Am. L. Rev. 652, note; 1 Domat Civil Law (Strahan’s translation, 2d ed.) 304, 305, 306, 312, 313; Exodus xxi: 28-32 . Nxji': 5, 6, 9'. It would' not be singular if these rules should 'be spontaneously produced at a, certain period in the life of any community. Where they first_a,ppfiared is of little consequence in the present inquiry. They were "certainly introduced in England at an immature stage of Englisly jurisprudence, and an undeveloped state of agriculture, manufactures, and commerce, when the nation liacTnot settled down to -(those modern, progressive, industrial pursuits which the spirit of the - fcommon law, adapted to all conditions of society, encourages and de/fends. They were introduced when the development of many of the V^ationa,! rules now universally recognized as principles of tjie common law had not been demanded by the growth of intelligence, trade, and productive enterprise, — when the common law had not been set forth in the precedents, as a coherent and logical system on many subjects other than the tenures of real estate. [At all events, whatever'may be said of the origin of those rules, to extend them, as they were extended in Rylands v. Fletcher, seems to us contrary to the analogies and the; general principles of the common law, as now established. To ¡extendí them to the present case would be contrary to American authority^ as well as to our understanding of legal principles.^ \

The difficulty under which the plaintiff might, labor in proving^the culpability of the defendant, — which is sometimes given as a reason for imposing an absolute liability without evidence of negligence — Rixford v. Smith, 52 N. H. 355, 359 — or changing the burden of propf—Lisbon v. Lyman, 49 N. H. 553, 568, 569, 574, 575,—seems not to have been given hj the English cases relating to damage done by brutes or fire. And, however large or small the class of cases in which sucjli ft difficulty may be the foundation of a rule of law, since the difficulty lias been so much reduced by the abolition of witness disabilities,—Iln; present case is not one of that class.

There are many cases where a man is held liable forytaking, cor> verting — C. R. Co. v. Foster, 51 N. H. 490 — or destroying property, or doing something else, or causing it to be done, intentionally, under a claim of right, and without any actual fault. “ Probably one ha|f of the cases, in which trespass de bonis asportatis is maintained, arise from á mere misapprehension of legal rights.” Metcalf, J., in Stanley v. Gaylord, 1 Cush. 536, 551. >¥11611 a defendant erroneously supposed, 'without any fault of either party, that he had a right to do what he did, and his act, done in the assertion of his supposed right, turns out to have been an interference with the plaintiff’s property, he is generally held to have assumed the risk of maintaining the right -which he asserted, and the responsibility of the natural consequences of his voluntary act. But when there was no fault on his part, and the dam-I age was not caused by his voluntary and intended act; or by an act ! of which he knew, or ought to have known, the damage would be a • necessary, probable, or natural consequence ; or by an act which he i knew, or ought to have known, to be unlawful, — we understand the ¡general rule to be, that be is not liable. Vincent v. Stinehour, 7 Vt. 62; Aaron v. State, 31 Ga. 167; Morris v. Platt, 32 Conn. 75; anc Judge Redfield’s note to that case in 4 Am. L. Reg. (N. S.) 582 ; Townshend on Slander, secs. 67, 88, p. 128, n. 1 (2d ed.). In Brown v. Kendall, 6 Cush. 292, the defendant, having interfered to part his dog and the plaintiff’s which were fighting, in raising a stick for that purpose, accidentally struck the plaintiff, and injured him. It was held, that parting the dogs was a lawful and proper act which the defendant might do by the use of proper and safe means; and that if the plaintiff’s injury was caused by such an act done with due care and all proper precautions, the defendant was not liable. In the decision, there is the important suggestion that some of the apparent confusion in the authorities has arisen from discussions of the question whether a party’s remedy is in trespass or case, and from the statement that when the injury comes from a direct act, trespass lies, and when the damage is consequential, case is the proper form of -action, — the remark concerning the immediate effect of an act being made with reference to damage for which it is admitted there is a remedy of some kind, and on the question of the proper remedy, not on the general question of liability. Judge Shaw, delivering the opinion of the court, said, — “ We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev., secs. 85 to 92; Wakeman v. Robinson, 1 Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental aUses, no action can be supported for an injury arising therefrom. Davis v. Saunders, 2 Ohit. R. 639; Com. Dig. Battery, A. (Day’s ed.) and notes; Vincent v. Stinehour, 7 Verm. 62;" James v. Campbell, 5 C. & P. 372; Alderson v. Waistell, 1 C. & K. 358.

Whatever may be the rule or the exception, or the reason of it, in cases of insanity — Weaver v. Ward, Hob. 134; Com. Dig. Battery, A, note d, Hammond’s ed.; Dormay v. Borradaile, 5 M. G. & S. 380; Sedgwick on Damages 455, 456, 2d ed.; Morse v. Crawford, 17 Vt. 499 ; Dickinson v. Barber, 9 Mass. 225; Krom v. Schoonmaker, 3 Barb. 647; Horner v. Marshall, 5 Munf. 466; Yeates v. Reed, 4 Blackf. 463—and whatever may be the full legal definitions of necessity, inevitable danger, and unavoidable accident, the occurrence complained of in this case was one for which the defendant is not liable, unless everyone is liable for all damage done by superior force overpowering him, and using him or his property as an instrument of violence. The defendant, being without fault, was as innocent as if the pole of his wagon had been hurled on the plaintiff’s land by a whirlwind, or he himself, by a stronger man, had been thrown through the plaintiff’s window. Upon the facts stated, taken in the sense in which we understand them, the defendant is entitled to judgment. 1 Hilliard on Torts, ch. 3, 3d ed.; Losee v. Buchanan, 51 N. Y. 476; Parrot v. Wells, 15 Wall. 524, 537; Roche v. M. G. L. Co., 5 Wis. 55; Eastman v. Co., 44 N. H. 143, 156. Case discharged.

* See Cahill v. Eastman, 18 Minn. 324, Madras R. Co. v. Zemindar of Carvetinago decided July 3, 1874, 30 L. Times Eep. (N. S.) 770.