"An Act of Parliament may authorize a nuisance, and if it does so, then the nuisance which it authorizes may be lawfully committed. But the authority given by the Act may be an authority which falls short of authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works without a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works" (r).

An authority accompanied by compulsory powers, or to be exercised concurrently with authorities ejusdem generis which are so accompanied, will, it seems, be generally treated as absolute; but no single test can be assigned as decisive (8).

Inevitable accident resulting from lawful act. In the cases we have just been considering the act by which the damage is caused has been specially authorized. Let us now turn to the class of cases which differ from these in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor's part. For it is undoubted that if by failure in due care I cause harm to another, however innocent my intention, I am liable. This has already been noted in a general way (t). No less is it certain, on the other hand, that I am not

(r) Bowen L. J., 29 Ch. D. at p. 108.
(s) See especially Lord Blackburn's

opinion in London and Brighton R. Co. v. Truman.

(t) P. 35, above.

answerable for mere omission to do anything which it was not my specific duty to do.

It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the consummate care" of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the class of cases where the facts are so given or determined as to exclude any negligence whatever.

In

Conditions of the inquiry. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. evitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed.

It may

On principle such action excludes liability. seem to modern readers that only one solution of the problem thus stated is possible, or rather that there is no problem at all (u). No reason is apparent for not accept

(u) This, at any rate, is the view of modern juries; see Nichols v. Marsland (1875), L. R. 10 Ex. at p. 256, 46 L. J. Ex.

174; Holmes v. Mather, L. R. 10 Ex. at p. 262.

ing inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man's hand (v). If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man's death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man's act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented (x). But

(v) Trespass for assault by striking the plaintiff with a stick thrown by the defendant. Plea, not guilty. The jury were directed that, in the absence of evidence for what purpose the defendant threw the stick, they might conclude it was for a proper purpose, and the striking the plaintiff was a mere accident for which the defendant was not answerable: Alderson v. Waistell (1844), 1

C. & K. 358 (before Rolfe B.). This, if it could be accepted, would prove more than is here contended for. But it is evidently a rough and ready summingup given without reference to the books.

(x) Shaw C. J. would not concede even this in the leading Massachusetts case of Brown v. Kendall, 6 Cush. at p. 297.

so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed.

Apparent conflict of authorities. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Judge O. W. Holmes (y) has put it "acts at his peril." Such seems to have been the early Germanic law (z), and such was the current opinion of English lawyers until the beginning of this century, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental jurisprudence (a); and this, although for us not conclusive or even authoritative, is worth considering whenever our own authorities admit of doubt on a point of general principle. And, what is more important for our purpose, the point has been decided in the sense here contended for by Courts of the highest authority in the

(y) See on the whole of this matter Mr. Justice Holmes's chapter on "Trespass and Negligence."

(z) Heusler, Inst. des deutschen Privatrechts, ii. 263; Ll. Hen. Primi, c. 88 § 6, 90 § 11; see p. 129, below.

(a) "Inpunitus est qui sine culpa et dolo malo casu quodam damnum committit.” Gai. 3. 211. Paulus indeed says (D. 9. 2, ad legem Aquillam, 45, § 4), "Si defendendi mei causa lapidem in adversarium misero, sed non eum sed praetereuntem percussero, tenebor lege Aquilia; illum enim solum qui vim infert ferire con

ceditur." But various explanations of this are possible. Perhaps it shows what kind of cases are referred to by the otherwise unexplained dictum of Ulpian in the preceding fragment," in lege Aquilia et levissima culpa venit." Paulus himself says there is no iniuria if the master of a slave, meaning to strike the slave, accidentally strikes a free man: D. 47. 10, de iniuriis, 4. According to the current English theory of the 16th-18th centuries an action on the case would not lie on such facts, but trespass vi et armis would.

United States. To these decisions we shall first call attention.

American decisions; The Nitro-glycerine Case. In The Nitro-glycerine Case (b) the defendants, a firm of

(b) 15 Wall. 524 (1872).

Inevitable accident resulting from lawful act. An unexpected injury caused by operation of nature or by a person without intention or negligence is an accident.

In the case of Morris v. Platt (32 Conn. 75, post, p. 201), accidents are classified by the court, as follows: "In the first class are all those which are inevitable or absolutely unavoidable, because effected or influenced by uncontrollable operations of nature; in the second class are those which result from human agency alone, but were unavoidable under the circumstances; and the third class, those which were avoidable, because the act was not called for by any duty or necessity and the injury resulted from the want of extraordinary care which the law reasonably requires from one doing such a lawful act, or because the accident was the result of actual folly, and might with reasonable care adapted to the exigency have been avoided." It is well established law that for damage caused by a lawful accident no recovery can be had. Strouse v. Whttlesy, 41 Conn. 559; DeFrancis v. Spencer, 2 Greene (Iowa), 462; Schneider v. Provident etc. Co., 24 Wis. 28; Gault v. Humes, 20 Md. 304; Worheide v. Missouri C. & T. Co., 32 Mo. App. 367; Brown v. Collins, 53 N. H. 442; Schroeder v. Michigan Car Co., 56 Mich. 132; Lewis v. Flint & P. M. Ry. Co., 54 Mich. 55; Richards v. Rough, 53 Mich. 212; Gould v. Stater Woolen Co., 147 Mass. 315; 17 N. E. Rep. 531; Allison Mfg. Co. v. McCormick, 118 Pa. St. 519; 12 At. Rep. 273; McCauley v. Logan, 152 Pa. St. 202; 25 At. Rep. 490; 31 W. N. C. 437; Chicago etc. Ry. Co. v. Becker, 38 Ill. App. 523; Grant v. Union Pac. Ry. Co., 45 Fed. Rep. 673; Klupp v. United Ice Lines, 15 N. Y. S. Rep. 597; McCaffrey v. Twenty-third St. R. Co., 47 Hun, 404; Haskins v. Stewart, 57 Hun, 380; 10 N. Y. S. Rep. 833; Brown v. Boom Co., 109 Pa. St. 57; 1 At. Rep. 156; Lansing v. Stone, 37 Barb. 15; Wabash etc. Ry. Co. v. Locke, 112 Ind. 404; 14 N. E. Rep. 391; Frost v. Grand Trunk R. Co., 10 Allen, 387; Kohn v. Lovett, 44 Ga. 251; Cahils v. Layton, 57 Wis. 600; Burton v. Davis, 15 La. An. 448; Sikes v. Sheldon, 58 Ia. 744; Wright v. Clark, 50 Vt. 130; 28 Am. Rep. 496; Nelson v. Chicago etc. Ry. Co., 30 Minn. 47.

In Standard Oil Co. v. Tierney (Ky.—17 S. W. Rep. 1025), a shipper of a quantity of naptha was held to be bound to so mark the barrels that the employés of the carrier, in the exercise of ordinary prudence, would ascertain the explosive nature of the goods; and whether the brand mentioned was sufficient for its purpose was a question for the jury.