3 N.H. 465 | Superior Court of New Hampshire | 1826
delivered the opinion of the court.
Tlit, principles, upon which the decision of this case must depend, arc well settled in the books.
In all case-, where the injury is done with force and immediately by llu; act of the defendant, trespass may be maintained. 1 Chitty’s Pl. 122.—3 East 593, Leame vs. Bray.—19 Johns, 381.—18 ditto, 257, Percival vs Hickey.
And in every case, where the iijury is the immediate effect of the defendant’s act, and is stated in the declaration, or appears upon the trial, to have been wilfully done, the remedy must be trespass. 1 Chitty’s Pl. 121.-8 D. & E. 188, Ogle vs. Barnes.—6 D. & E. 128. And Savignac vs. Rooms, 6 D & E. 125.—5 D. & E. 648, Day vs. Edwards.
But where the damage or injury ensues, not directly from the act of the defendant, the remedy must be case. I Chitty’s Pl. 126.
In all cases, where the injury is attributable to negligence, although it were the immediate effect of the defendant’s act, the party injured has an election, either to treat the negligence of the defendant as the cause of action, and declare in case ; or to consider the act itself as the cause of the injury, and to declare in trespass. 1 Chitty’s Pl. 127.—5 Bos. & Puller 117, Rogers vs. Imblelon.—3 Burrows 1560—5 B. & P. 447, note.—3 East 600 and 601.-8 D. & E. 188, Ogle vs. Barnes.—14 Johns. 432, Bliss vs. Campbell, where it was decided, that case might be maintained for wounding; the plaintiff’s leg, by negligently firing a pistol. 1 Bos. & Puller 472, Turner vs Hawkins.
In the case now before us, it did not appear, that the injury was wilfully done, but it was the consequence of great carelessness. This is an instance then, where either trespass or case may be maintained ; and there must be
Judgment on the verdict.
