1 Abb. Ct. App. 327 | NY | 1865
Ho question is made but that the plaintiff was injured by the discharge of a musket, loaded with a ball cartridge, by one of the men in the ranks of the regiment; and the command to fire was given by the defendant, personally, to all the men; and the discharge was pursuant to and in obedience of that direction. These facts constitute the defendant, facie, a trespasser to the same extent as though the musket was fired by his own l^nd. The case does not arise out of negligence, for the injury was direct and immediate, and not consequential. . On the other hand, no question can arise but that the assemblage of the men for drill and military exercise was perfectly legal; nor, but that there was an utter absence of any intent to injure the plaintiff or any other human being. The circumstance that one of the guns was loaded with a ball, was, as far as the defendant was concerned, purely accidental. In a moral point of view, and upon the amount of .damages to be recovered, it was a great alleviation that the defendant had taken all the usual precautions, and all which were
In Underwood v. Hewson, 1 Strange, 596, the defendant was uncocking a gun, and the plaintiff standing by to see it, it went off and wounded him, and it was held that the plaintiff might maintain trespass. In an earlier case, reported in Hobart, the defendant, in trespass for an assault and battery, pleaded that
I am of opinion, therefore, that the judge might properly have instructed the jury, that the evidence that the defendant had commanded the firing, and that one of the men fired a gun
I am, moreover, of opinion that the judgment can be sustained upon the theory adopted by the judge. He put the case on the ground of want of due care and proper precaution; and charged, in effect, that there could be no recovery unless the defendant had been guilty of negligence.
The defendant’s exception to this instruction is based upon the assumption that the facts, which were clearly proved and were not contradicted, conclusively rebutted the imputation of negligence. These facts were certainly very strong. The defendant, in the nature of the case, was obliged to act by the agency of his subordinates. The measures taken by his direction appear to have been very judicious and well calculated to secure what was aimed at, namely, that none of the muskets should be charged with ball. But they failed, as all such precautions will sometimes do. Some officer or man neglected his duty, or some ear failed in catching the true sound of the rammer, and a lamentable accident was the result. The negligence, in my opinion, consisted in firing at all into a crowd of people without positive knowledge that no one musket in the whole regiment contained anything more than a blank cartridge. Let us see what chances there were for mistake. Ball cartridges had, that day, certainly been in the hands of a part of the men, and in their boxes. It was designed that they should all be taken out; but the duty of doing it had to be intrusted to a number of men of an average, or perhaps more than an average, grade of intelligence and prudence. General evidence was given that all the officers and men were sober; but there may have been an absent-minded man, or an excitable or an excited man, or one wrhose sense of hearing was not ordinarily acute among them. The occasion was of the nature of a holiday, and some of the men had been engaged in rivalry as to their skill in firing,. Under such circumstance^, it was easy to make a slip in that thorough and perfect examination which was necessary to secure absolute safety. We know that such a slip was made by somebody, and we can see that it was not very remarkable that
I do not think any fault is justly imputable to the plaintiff in being where she was.. There was no evidence that she knew that musket balls had been in the possession of any of the men, or even, that they intended to fire at all. She was impliedly permitted Üfy the defendant to be at the place where she was, and she was not bound to suspect that any thing would be done to endanger her life or limbs.
We have nothing to do with the amount of the verdict; but I cannot refrain from expressing my approval of its moderaítion. A very large amount was claimed in the complaint, which may well have justified the defendant in contesting, and we doubt not but that the appeal was brought with a view of • having an interesting point of law settled by the court of final appeal. The judgment must be affirmed.
A majority of the judges concurred.
Judgment affirmed.