Harvey v. Dunlop , 1 Hill & Den. 193 ( 1843 )

By the Court,

Nelson., Ch. J.

I am of opinion that the grounds upon which the learned judge placed the case before the jury were correct. No case or principle can be found, or if found can be maintained, subjecting an individual to liability for an act done without fault on his part; and this was substantially the doctrine of the charge. All the cases concede that an injury arising from inevitable accident, or, which in law or reason is the game thing, from an act that ordinary human • care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility. Thus it is laid down that, “ If one man has received a corporal injury from thej ; voluntary act óf another, an action of trespass lies, provided \ there xvas a neglect or want of due caution in the person who did the injury, although there was no design to injure.”;V (Bop. AbrAit. Trespass, D.) But if not imputable to the neglect of the party by whom it was done, or to his want of caution, an action of trespass does not lie, although the consequences of a voluntary act. (Weaver v. Ward, Hob., 134; Gibbons v. Pepper, 4 Mod., 405.) It was said by Dallas, C. J., in Waleeman v. Robinson (iBingh., 213),“if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie and the same principle is recognized in Bullock v. Babcock (3 Wend., 391).

But it is said that inasmuch as the defendant admitted the injury to have been inflicted by him, it should be presumed to have been done, wrongfully or carelessly, and that the onus lay upon him to show the contrary. This is undoubtedly a sound general principle and the plaintiff is entitled to the full benefit of it; but it was for the jury to determine upon the facts and circumstances before them, whether or not the defendant was in the wrong. In order to arrive at a decision upon this question the jury had a right to take into consideration the childhood of the parties, the friendly relations existing between them, the conduct of both' on their return home, but more especially the repeated admissions of the plaintiff that the defendant was not to blame. The latter fact was very material, and must and should have, produced a strong impression upon the minds of the jury in the absence of 'the testimony of Clementine, because the natural inference to be.drawn from the declarations was that the plaintiff had received the information upon which they were based from His daughter’s account of the tranaction, and had frankly disclosed it though the admissions operated against his own interest. These admissions, taken in connection with the other facts and circumstances in the case, were undoubtedly decisive of the true character of the transaction, and they conduct us satisfactorily to the same conclusion arrived at by the jury, that the misfortune happened without fault on either side, and that it was one of those unhappy accidents to which children of the tender age of these parties are not unfrequently exposed in their little innocent plays und amusements—a result rather to be deplored than punished.

New trial denied.