The quotations which were made above in favor of the strict
doctrine from Sir T. Raymond, in Bessey v. Olliot, and from Sir
William Blackstone, in Scott v. Shepherd, are both taken from
dissenting opinions. In the latter case it is pretty clear that
the majority of the court considered that to repel personal
danger by instantaneously tossing away a squib thrown by another
upon one's stall was not a trespass, although a new motion was
thereby imparted to the squib, and the plaintiff's eye was put
out in consequence. The last case cited above, in stating the
arguments for absolute responsibility, was Leame v. Bray. /2/ The
question under discussion was whether the action (for running
down the plaintiff) should not have been case rather than
trespass, the defendant founding his objection to trespass on the
ground that the injury happened through his neglect, but was not
done wilfully. There was therefore no question of absolute
responsibility for one's acts [105] before the court, as
negligence was admitted; and the language used is all directed
simply to the proposition that the damage need not have been done
intentionally.
In Wakeman v. Robinson, /1/another runaway case, there was
evidence that the defendant pulled the wrong rein, and that he
ought to have kept a straight course. The jury were instructed
that, if the injury was occasioned by an immediate act of the
defendant, it was immaterial whether the act was wilful or
accidental. On motion for a new trial, Dallas, C. J. said, "If
the accident happened entirely without default on the part of the
defendant, or blame imputable to him, the action does not lie
....The accident was clearly occasioned by the default of the
defendant. The weight of evidence was all that way. I am now
called upon to grant a new trial, contrary to the justice of the
case, upon the ground, that the jury were not called on to
consider whether the accident was unavoidable, or occasioned by
the fault of the defendant. There can be no doubt that the
learned judge who presided would have taken the opinion of the
jury on that ground, if he had been requested so to do." This
language may have been inapposite under the defendant's plea (the
general issue), but the pleadings were not adverted to, and the
doctrine is believed to be sound.
Public-domain text, read in full here on John Shaqi.
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