43 Vt. 417 | Vt. | 1871
The opinion of the court was delivered by
The case shows that the defendant’s failer was the owner of the freehold on which was situate the aqueduct. The failer “ had forbidden the plaintiff’s entering on the land where it was,” and ‘-had directed the defendant to watch the aqueduct and see that no one interfered with it.” The defendant was a minor son, in the service of his failer, on the premises. The defendant went to the boundary of the land where the aqueduct was, and found the plaintiff about to enter upon the land, on his way to the aqueduct, and about 22i feet from it. Defendant forbid the plaintiff’s going upon the land, but he persisted and sprang over the fence, and approached the defendant in a threatening manner, and the defendant thereupon struck him several blows, which he claimed were “ in necessary defense of himself, the land, and the aqueduct.” The court charged the jury that “ the defendant had no right to use force to protect the aqueduct till the plaintiff had attempted to interfere with it to do harm to it“ that except as to the aqueduct both were rightfully there.” If the plaintiff had no right to interfere with the aqueduct, we are unable to discover how he could be rightfully on the prem
The defendant, in his defense of the aqueduct, was not bound to wait until the plaintiff had reached it and was in the act of dealing a destructive blow. He could rightfully defend the approaches and outposts. If the plaintiff was within a few feet of the aqueduct, and “ on his way to it,” the defendant, after warning him to desist, might as well resist his further approach, as-to wait until injury or destruction became more imminent. If a servant be directed to- defend a house or barn, he is not necessarily confined to the lintel of the door, but may resist the intruder in his approach,—in the yard, or at the gate. It would be too narrow to strip him of his justification because his resistance, otherwise justifiable, was made a few feet from the door. So in this case, if the plaintiff forcibly persisted in going to the aqueduct after he was forbidden to do so, the defendant might rightfully resist his further approach, using no unnecessary force. And in the charge of the court, in this respect, there was error.
II. The court charged the jury that the “ plaintiff was not limited to the excess even if the plaintiff did make the first assault.” We think this was error. The rule has been well settled in this state, though otherwise in the English practice, that when de injuria is replied to the plea of son assault demesne, all the substantial averments of the plea are put in issue ; as well whether more than necessary force was used in repelling the assault, as who made the first assault; and if the plaintiff is shown to have made the first assault, he can recover only for the excess of force used in the defense. Elliott v. Kilborn, 2 Vt., 470; Yale v. Seely, 15 do., 221; Devine v. Rand, 38 do., 621. See also Dole v. Erskine, 35 N. H., 503.
We think this rule well founded in reason, and that the practice in England, requiring the plaintiff to new assign if he would go for the excess, is too artificial, and needless; for the plea
III. The defendant offered to prove that “ plaintiff was reputed to be, and was in fact, a quarrelsome man, with a violent and uncontrollable temper, and this was known to the defendant at the time ; ”. which was excluded by the court. The defendant must be judged, and justified or condemned, in the light of the circumstances that surrounded him; not by the secret motive or intent of the plaintiff, but by the apparent purpose ; not by the actual, but apparent danger. If a man presents a pistol to another and threatens his life, the assailed party is not required to wait till he is dead, to test the certainty that the man intended to kill him, but he would be justified in disabling his assailant at once, though it should finally prove that the pistol was unloaded and murder not intended. So if the assailant is known to the assailed to be a practised pugilist and a man of violence, the kind and degree of resistance must be measured, or at least modified, by the apparent danger with which the party is threatened. And we think that, when the “ plaintiff sprang over the fence and went toward the defendant in a threatening manner,” the degree of force, whether it be reasonable or unreasonable, which defendant might employ, would depend measurably upon the known character, in that respect, of the plaintiff; whether he be a “ man of war from his youth,” or of peace ; whether he had the temper, the will and ability, to inflict sudden and great bodily injury, and the danger was imminent, or whether he be known to the defendant as a man of mild temper and a stranger to violence. We think the evidence should have been received, and that the apparent danger which threatened the defendant would be somewhat affected by it, and the degree of force which defendant might lawfully use should be measured or modified by it.
The judgment of the county court is reversed, and the cause remanded.
