carriers, received a wooden case at New York to be carried to California. There was nothing in its appearance calculated to awaken any suspicion as to its contents," and in fact nothing was said or asked on that score. On arrival

at San Francisco it was found that the contents (which "had the appearance of sweet oil") were leaking. The case was then, according to the regular course of business, taken to the defendants' offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its properties well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with "in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents." The defendants admitted their liability as for waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building.

Doctrine of Supreme Court; no liability for accidental result of lawful act without negligence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place

the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage; and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident (c). "No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. The

measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own."

Brown v. Kendall (Massachusetts). The Court proceeded to cite with approval the case of Brown v. Kendall in the Supreme Court of Massachusetts (d). There the plaintiff's and the defendant's dogs were fighting; the defendant was beating them in order to separate them, and the plaintiff looking on. "The defendant retreated backwards from before the dogs, striking them as he retreated; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury." The action was trespass for assault and battery. It was held that the act of the defendant in itself" was a lawful and proper act which he might do by proper and safe means;" and that if "in doing this act, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable (e), and therefore the action

(c) The plaintiff's proper remedy would have been against the consignor who despatched the explosive without informing the carriers of its nature. See Lyell v. Ganga Dai (1875), Indian Law Rep. 1 All. 60.

(d) 6 Cush. 292 (1850).

(e) The consequence was involuntary or rather unintended, though the act itself was voluntary; and it was also unavoidable, i. e. not preventable by reasonable diligence.

would not lie." All that could be required of the defendant was "the exercise of due care adapted to the exigency of the case." The rule in its general form was thus expressed: “If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom."

Other American cases: contrary opinion in Castle v. Duryee (N. Y.). There have been like decisions in the Supreme Courts of New York (ƒ) and Connecticut. And these rulings appear to be accepted as good law throughout the United States (g). The general agreement of American authority and opinion is disturbed, indeed, by one modern case in the Court of Appeal of New York, that of Castle v. Duryee (h). But the conflicting element is not in the decision itself, nor in anything necessary to it. The defendant was the colonel of a regiment of New York militia, who at the time of the cause of action were firing blank cartridge under his immediate orders in the course of a review. The plaintiff was one of a crowd of spectators who stood in front of the firing line and about 350 feet from it. Upon one of the discharges the plaintiff was wounded by a bullet, which could be accounted for only by one of the men's pieces having by some misadventure been loaded with ball cartridge. It appeared that one company had been at target practice an hour or two before, and that at the end of the practice arms had been examined in the usual way (i), and surplus ammunition collected. Moreover, arms had again been inspected by the commanding officers of companies, in pursuance of the colonel's orders, before the line was formed for the regimental parade. The plaintiff sued the defendant in an action"in the

Harvey v. Dunlap, Lalor 193, cited

15 Wall. 539; Morris v. Platt, 32 Conn. 75. (g) Cooley on Torts, 80.

(h) 2 Keyes, 169 (1865).

(i) It will be remembered that this

was in the days of muzzle-loaders. A like accident, however, happened not many years ago at an Aldershot field day, fortunately without hurt to any

one.

nature of trespass for an assault." A verdict for the plaintiff was ultimately affirmed on appeal, the Court being of opinion that there was evidence of negligence. Knowing that some of the men had within a short time been in possession of ball ammunition, the defendant might well have done more. He might have cleared the front of the line before giving orders to fire. The Court might further have supported its decision, though it did not, by the cases which show that more than ordinary care, nay "consummate caution (j), is required of persons dealing with dangerous weapons. The Chief Judge added that, as the injury was the result of an act done by the defendant's express command, the question of negligence was immaterial. But this was only the learned judge's individual opinion. It was not necessary to the decision, and there is nothing to show that the rest of the Court agreed to it (k).

English authorities: cases of trespass and shooting. We may now see what the English authorities amount to. They have certainly been supposed to show that inevitable accident is no excuse when the immediate result of an act is complained of. Erskine said a century ago in his argument in the celebrated case of The Dean of St. Asaph (1) (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that “if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for trespass (m), but he must answer in an action for everything he has broken." And Bacon had said earlier to the same purpose, that "if a man be killed by misad

() Erle C. J. obiter, in Potter v. Faulkner, 1 B. & S. at p. 805, 31 L. J. Q. B. 30; Dixon v. Bell, 5 M. & S. 198.

(k) The reporter adds this significant note: "The Court did not pass upon the first branch of the case, discussed by the Chief Judge, as to the question of the general liability of the commanding officer."

(7) 21 St. Tr. 1022 (A. D. 1783).

(m) Would an indictment ever lie for simple trespass? I know not of any authority that it would, though the action of trespass originally had, and retained in form down to modern times, a public and penal character.

venture, as by an arrow at butts, this hath a pardon of course: but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will" (n). Stronger examples could not well be propounded. For walking in one's sleep is not a voluntary act at all, though possibly an act that might have been prevented and the practice of archery was, when Bacon wrote, a positive legal duty under statutes as recent as Henry VIII.'s time, though on the other hand shooting is an extra-hazardous act (o). We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I. (p), and in the arguments of counsel in a case in the Year-Book of Edward IV., where the general question was more or less discussed (q). Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Brown v. Kendall. But the decision was only that if A. cuts his hedge so that the cuttings ipso invito fall on B.'s land, this does not justify A. in entering on B.'s land to carry them off. And by Choke C. J. it is said, not that (as Brian's view would require) A. must keep his thorns from falling on B.'s land at all events, but that he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out."

Weaver v. Ward. Another case usually cited is Weaver v. Ward (r). The plaintiff and the defendant were both members of a train-band exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant's piece. It is a very odd case to quote for the doctrine

(n) Maxims of the Law, Reg. 7, following the dictum of Rede J. in 21 Hen. VII. 28. We cite Bacon, not as a writer of authority, but as showing, like Erskine, the average legal mind of his time.

(0) O. W. Holmes, 103.

(p) C. 88 § 6. "Si quis in ludo sagittandi vel alicuius exercitii iaculo vel huiusmodi casu aliquem occidat, reddat

eum; legis enim est, qui inscienter peccat, scienter emendet." C. 90 § 11 adds an English form of the maxim: "et qui brecht ungewealdes, bete gewealdes."

(q) 6 Edw. IV. 7, pl. 18; O. W. Holmes, 85; cf. 21 Hen. VII. 27, pl. 5, a case of trespass to goods which does not really raise the question.

(r) Hob. 134, A. D. 1616.