11 Mass. 137 | Mass. | 1814
Upon this state of facts, our opinion is, that the plaintiff has sustained an injury by the act of the defendant. The plaintiff has a right of action, a just demand for damages; but whether in the form of trespass, or of trespass on the case, is a question of some difficulty in the circumstances of this case.
The well-known distinction of immediate injury and consequen tial injury is the rule upon which our doubts have arisen: in all other respects, the action is clearly maintained for the plaintiff upon the facts agreed.
It is immaterial, as respects the right of action, or the form, whether the act of the defendant was by his intention and purpose injurious to the plaintiff, or the mischief which ensued was accidental, and beside his intention, or contrary to it. The decision in the case of Underwood vs. Hewson
In the case at bar, it does not appear, from the facts stated, how near the place where the horse was fastened was to the door of
Upon the wffiole, if the parties agree in the amount of damages, a contest about the form of action will be of little avail to the defendant; as, if he should defeat the plaintiff in this suit, the expenses of it might be properly urged as a ground of further damages, in an action of the case. If the parties do not agree, we shall leave the case to the jury to settle it as a question of fact, upon the principles I have stated.
The Court would take this occasion to observe upon the dangers to which travellers and passengers on foot and in carriages are exposed by discharges of guns in or near the highways — dangers affecting not only the property, but the limbs and lives, of their fellow-citizens, and others entitled to the protection of the laws. The extreme inconsiderateness, and sometimes the purposes of wanton mischief, discoverable in acts of this description, are to be corrected and punished. The party injured, either in his person or property, by the discharge of a gun, even when the act is lawful, as at a military muster and parade, and under the orders of a commanding officer, is entitled to redress in a civil action, to the extent of his damage; and where the act is unnecessary, a matter of idle sport and negligence, and still more when the act is accompanied with purposes of wanton or deliberate mischief, and any hurt or damage ensues, the guilty party is liable, not only in a civil action, but as an offender against the public peace and security ; is liable to be indicted, and, upon conviction, to be fined and imprisoned, and,
Strange, 596.
Chitty. 123—128.— Sir T. Raym. 422, 467. — Hob. 134. — Str. 596.
1 Chitty, Plead. 5th ed. 146. — Moreton vs. Hardern, 4 Barn. & Cresw. 226.