There is, however, an important consideration, which has not yet
been adverted to. It is undoubtedly possible that those who have
the making of the law should deem it wise to put the mark higher
in some cases than the point established by common practice at
which blameworthiness begins. For instance, in Morris v. Platt,
/2/ the court, while declaring in the strongest terms that, in
general, [116] negligence is the foundation of liability for
accidental trespasses, nevertheless hints that, if a decision of
the point were necessary, it might hold a defendant to a stricter
rule where the damage was caused by a pistol, in view of the
danger to the public of the growing habit of carrying deadly
weapons. Again, it might well seem that to enter a man's house
for the purpose of carrying a present, or inquiring after his
health when he was ill, was a harmless and rather praiseworthy
act, although crossing the owner's boundary was intentional. It
is not supposed that an action would lie at the present day for
such a cause, unless the defendant had been forbidden the house.
Yet in the time of Henry VIII. it was said to be actionable if
without license, "for then under that color my enemy might be in
my house and kill me." /1/ There is a clear case where public
policy establishes a standard of overt acts without regard to
fault in any sense. In like manner, policy established exceptions
to the general prohibition against entering another's premises,
as in the instance put by Chief Justice Choke in the Year Book,
of a tree being blown over upon them, or when the highway became
impassable, or for the purpose of keeping the peace. /2/
Another example may perhaps be found in the shape which has been
given in modern times to the liability for animals, and in the
derivative principle of Rylands v. Fletcher, /3/ that when a
person brings on his lands, and collects and keeps there,
anything likely to do mischief if it escapes, he must keep it in
at his peril; and, if he does not do so, is prima facie
answerable for all the [117] damage which is the natural
consequence of its escape. Cases of this sort do not stand on the
notion that it is wrong to keep cattle, or to have a reservoir of
water, as might have been thought with more plausibility when
fierce and useless animals only were in question. /1/ It may even
be very much for the public good that the dangerous accumulation
should be made (a consideration which might influence the
decision in some instances, and differently in different
jurisdictions); but as there is a limit to the nicety of inquiry
which is possible in a trial, it may be considered that the
safest way to secure care is to throw the risk upon the person
who decides what precautions shall be taken. The liability for
trespasses of cattle seems to lie on the boundary line between
rules based on policy irrespective of fault, and requirements
intended to formulate the conduct of a prudent man.
Public-domain text, read in full here on John Shaqi.
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