5 created a peril did not intend or expect an injury to result therefrom; every person is held to a knowledge of the natural consequences of his acts. In order, however, to impute knowledge of a dangerous thing or place, the danger therefrom must have been such as is recognized by common experience or might reasonably have been expected by a person of ordinary prudence and foresight. Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made is insufficient as against an event such as may happen once in a lifetime, or perhaps twice in a century, does not make out a case of negligence upon which an action in damages will lie. Said Mr. Justice Holmes, while a judge of the Massachusetts court: "Knowledge of the dangerous character of a thing is only the equivalent of foresight of the way in which it will act. We admit that if the thing is generally supposed to be universally harmless, and only a specialist would foresee that in a given case it would do damage, a person who did not foresee it and who had no warning would not be held liable for the harm. If men were held answerable for every thing they did which was dangerous. in fact, they would be held for all their acts from which harm in fact ensued. The use of the thing must be dangerous according to common experience, at least to the extent that there is a manifest and appreciable chance of harm from what is done, in view either of the actor's knowledge or of his conscious ignorance."8 To illustrate, it is held that a person constructing a toboggan slide to be used by the public for a consideration, at a bathing resort, is bound to anticipate and provide against injuries from defects in construction, to the extent that reasonable, prudent men might foresee the necessity of doing. The length of time during which a peril has existed and 3. Knight v. Goodyear's India Rubber Glove Mfg. Co., 38 Conn. 438, 9 Am. Rep. 406. See also Chicago, etc., R. Co. v. Hines, 132 Ill. 161, 23 N. E. 1021, 22 A. S. R. 515. Note: 69 L.R.A. 539. 4. Baltimore, etc., R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 119 A. S. R. 503, 7 L.R.A. (N.S.) 597; Saylor v. Parsons, 122 Ia. 679, 98 N. W. 500, 101 A. S. R. 283, 64 L.R.A. 542; Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L.R.A. 402; Ford v. Tremont Lumber Co., 123 La. 742, 49 So. 492, 131 A. S. R. 370, 22 L.R.A. (N.S.) 917; Currier v. McKee, 99 Me. 364, 59 Atl. 442, 3 Ann. Cas. 57; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Lillibridge v. McCann, 117 Mich. 84, 75 N. W. 288, 72 A. S. R. 553, 41 L.R.A. 381; Huber v. La Crosse City R. Co., 92 Wis. 636, 66 N. W. 708, 53 5. Baltimore, etc., R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 119 A. S. R. 503, 7 L.R.A. (N.S.) 597; Gibson v. Delaware, etc., Canal Co., 65 Vt. 213, 26 Atl. 70, 36 A. S. R. 802. 6. Barret v. Lake Ontario Beach Imp. Co., 174 N. Y. 310, 66 N. E. 968, 61 L.R.A. 829. See infra, par. 19. 7. New Orleans, etc., R. Co. v. MeEwen, 49 La. Ann. 1184, 22 So. 675, 38 L.R.A. 134, quoted with approval in Ford v. Tremont Lumber Co., 123 La. 742, 49 So. 492, 131 A. S. R. 370, 22 L.R.A.(N.S.) 917. 8. Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264. 9. Barret v. Lake Ontario Beach has been visible may justify a finding that the person responsible for its existence had notice thereof.10 12 Degrees of Negligence; Accident 12. Injury as Basis of Liability; Inevitable Accident.-If an act is done with premeditation and formed intention the actor is, of course, liable for all its consequences; 11 but when premeditation does not characterize the conduct of the actor, it by no means follows that he must respond in damages merely because an injury has been occasioned. It has long been recognized that no action will lie for injuries attributable to what is termed inevitable or unavoidable accident.13 In other words, if no fault or negligence is chargeable to either of the parties to the occurrence upon which the action is founded the loss and injury will be allowed to remain where it has fallen.14 One of the earliest cases on this subject is that of Weaver v. Ward (Hob. 134), wherein it appeared that two companies of trained soldiers were skirmishing for exercise, and a soldier of one Imp. Co., 174 N. Y. 310, 66 N. E. 968, 61 L.R.A. 829. 10. Chicago v. Major, 18 Ill. 349, 68 Am. Dec. 553; Dundas v. Lansing, 75 Mich. 499, 42 N. W. 1011, 13 A. S. R. 457, 5 L.R.A. 143; Pettingill v. Yonkers, 116 N. Y. 558, 22 N. E. 1095, 15 A. S. R. 442. 11. Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496; Isham v. Dow, 70 Vt. 588, 41 Atl. 585, 67 A. S. R. 691, 45 L.R.A. 87. To authorize a recovery the defendant need not have acted with evil intent. Noyes v. Shepherd, 30 Me. 173, 50 Am. Dec. 625. 12. See supra, par. 3. 372; Cosulich v. Standard Oil Co., 122 N. Y. 118, 25 N. E. 259, 19 A. S. R. 475; American Exp. Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561; Brown v. Susquehanna Boom Co., 109 Pa. St. 57, 1 Atl. 156, 58 Am. Rep. 708; Vincent v. Stinehour, 7 Vt. 62, 29 Am. Dec. 145; Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742; Lyndonville Nat. Bank v. Fletcher, 68 Vt. 81, 34 Atl. 38, 54 A. S. R. 874; Fahn v. Reichart, 8 Wis. 255, 76 Am. Dec. 237; Davis v. Saunders, 2 Chitty 639, 1 Eng. Rul. Cas. 203 and note; Forward v. Pittard, 1 T. R. 27, 1 Rev. Rep. 142, 1 Eng. Rul. Cas. 216 and note; Nugent v. Smith, 1 C. P. D. 19, 423, 45 13. Flynn v. San Francisco, etc., R. L. J. Q. B. D. 19, 697, 1 Eng Rul. Cas. Co., 40 Cal. 14, 6 Am. Rep. 595; 218 and note; Fletcher v. Rylands, L. Chicago, etc., R. Co. v. Reilly, 212 Ill. R. 1 Exch. 265, L. R. 3 H. L. 330, 35 506, 72 N. E. 454, 103 A. S. R. 243; L. J. Exch. 145, 12 Jur. (N. S.) 603, Durham V. Musselman, 2 Blackf. 14 L. T. N. S. 523, 14 W. R. 799, 4 H. (Ind.) 96, 18 Am. Dec. 133; Lehman, C. 263, 37 L. J. Exch. 161, 19 L. T. etc., Co. v. Morgan's, etc., Co., 115 La. 1, 38 So. 873, 112 A. S. R. 259, 5 Ann. Cas. 818, 70 L.R.A. 562; Neal v. Saunderson, 2 Smedes & M. (Miss.) 572, 41 Am. Dec. 609; Miller v. Martin, 16 Mo. 508, 57 Am. Dec. 242; Taillon v. Mears, 29 Mont. 161, 74 Pac. 421, 1 Ann. Cas. 613; Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546; Brown r. Collins, 53 N. H. 442, 16 Am. Rep. R. C. L. Vol. XX.-2. 17 N. S. 220, 1 Eng. Rul. Cas. 235 and note; Nichols v. Marsland, 2 Ex. D. 1, 46 L. J. Exch. 174, 35 L. T. N. S 174, 25 W. R. 173, 1 Eng. Rul. Cas. 262 and note. 14. Paxton v. Boyer, 67 Ill. 132, 16 Am. Rep. 615; Marshall v. Welwood, 38 N. J. L. 339, 20 Am. Rep. 394, Lyndonville Nat. Bank v. Fletcher, 68 Vt. 81, 34 Atl. 38, 54 A. S. R. 874. company, in firing his piece, wounded a soldier of the other company. On demurrer to a declaration in trespass for this injury, the court gave judgment for the plaintiff, but declared it would have been otherwise if it had been utterly without the defendant's fault, as if the plaintiff had run across his piece when it was discharging; or had set forth the case with the circumstances, so as it had appeared to the court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt. This doctrine is recognized in the subsequent cases, and although difficulties have arisen in its application, its correctness seems never to have been contested.15 Even a carrier is not an insurer of the personal safety of its passenger, and is not liable for injuries received by the latter through unavoidable accident.16 But it is insisted that a person is in no degree absolved from liability by reason of the fact that the injury was produced by accident in combination with his own negliNor can he excuse himself on the ground of inevitable accident by showing that the damage would have been inflicted. although he had acted with prudence and fulfilled his duty.18 13. Judicial Definitions of Term "Accident."-The term "accident," in legal signification, varies not a little in meaning,19 and is said to be difficult to define.20 Judge Story, speaking of the jurisdiction of courts of equity arising from accidents, says: "By the term 'accident' is here intended not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force, but such unforeseen events, misfortunes, losses, acts, or omissions as are not the result of any negligence or misconduct. in the party." 22 1 An accident has also been described as an occurrence which happens unexpectedly from the uncontrollable operations of nature alone, and without human agency, or results undesignedly 17. Illinois Central R. Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 11 Ann. Cas. 368, 15 L.R.A. (N.S.) 819. See infra, par. 89. 18. Nitro-phosphate, etc., Co. v. London, etc., Docks Co., 9 Ch. D. 503, 39 L. T. N. S. 433, 27 W. R. 267, 1 Eng. Rul. Cas. 276. 19. The word "accident," when used in a bill of lading as referring to events involving damage to the property car ried for which the carrier is to be liable, includes the result of any human fault which constitutes actionable negligence. Such word is not synonymous with "mere accident" or "purely accidental," and means directly the opposite. Ullman v. Chicago, etc., R. Co., 112 Wis. 150, 88 N. W. 41, 88 A. S. R. 949, 56 L.R.A. 246. "Act of God" is synonomous with "inevitable accident." Neal v. Saunderson, 2 Smedes & M. (Miss.) 572, 41 Am. Dec. 609. 20. Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742. 1. Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742; Simpson v. Montgomery, 25 Ark. 365, 99 Am. Dec. 228. and unexpectedly from human agency alone, or from the joint operation of both. And, again, it has been said that "where an event takes place the real cause of which cannot be traced, or is at least not apparent, it ordinarily belongs to that class of occurrences which are designated as purely accidental.” 3 14. Distinction between Negligence and Accident.-All civil liability—and criminal responsibility too, for that matter-may be said to depend on the tendency of a person's acts under the circumstances known to him. The idea embodied by these words has been found too broad, however, for application as a rule of law; and consequently it has been split into numerous subdivisions, or perhaps it is more nearly accurate to say that out of it have been carved narrower concepts. Certain of these may be denominated negligence, wilful omission of duty, and accident. While the practical administration of the law finds such a subdivision convenient, the truth of the proposition that the subdivisions are all carved out of the broader conception becomes apparent when one endeavors to discover their boundaries. Any attempt to distinguish between accident, negligence, and omission of duty will disclose that by imperceptible degrees they merge into the broader thought expression. In any case it is the tendency of the act done, under the circumstances known to the actor, that is to be discovered.5 Under society's shifting standards for determining right and wrong doing, what may be understood as accident at one time and place will be deemed negligence at another time and place. The standard is continually being raised, or otherwise expressed the prohibitions of the law are constantly becoming more extensive. For example, in a state of society that permits the carrying of firearms, the unintentional discharge of a pistol may be said to cause a death by accident; whereas under laws strictly denouncing the possession of weapons, the killing may in truth be said to be due to a wrongful act or negligence. Again, under the rule of the early common law, a person in whose house or chamber a fire originated was held absolutely liable for resulting damage. In other words, he was conclusively presumed to have been negligent, a presumption that has disappeared with the condition of society that deemed it politic.8 The law, however, has fixed upon a standard for produced by the act." Durham v. Musselman, 2 Blackf. (Ind.) 96, 18 Am. Dec. 133. 6. See HOMICIDE, vol. 13, p. 855. 7. Lothrop v. Thayer, 138 Mass. 466, 52 Am. Rep. 286; Door v. Harkness, 49 N. J. L. 571, 10 Atl. 400, 60 Am. Rep. 656. 8. Door v. Harkness, 49 N. J. L. 571, 10 Atl. 400, 60 Am. Rep. 656. See also Lehman v. Morgan's, etc., Co., 115 determining whether an act is negligent and actionable or is accidental and without legal redress, and that standard is the conduct of the average prudent man." If the injury resulting from the act could have been foreseen by a prudent person, the perpetrator will be held accountable therefor; 10 the case is not one of accident.11 And conversely, if the injury could not have been foreseen, it is to be attributed, not to the actor, but to accident.12 Accident, then, is an occurrence that could not have been forescen.18 When an act is forbidden by express provision of law, the standard of the legislature becomes absolute, and one who perpetrates the prohibited act will be deemed to be liable regardless of whether the resulting injury might have been foreseen by a prudent person.14 15. "Wilful" and "Wanton" Negligence.-Wilful, wanton, malicious or intentional conduct is not properly speaking within the meaning of the term "negligence." 15 Wilfulness or wantonness imports premeditation or knowledge and consciousness that injury will result from the act done,16 whereas "negligence" conveys the idea of inadvertence as distinguished from premeditation or formed intention.17 Yet in the opinions one not infrequently finds the expression "wilful negligence; "18 and it is explained that "to constitute wilful negli La. 1, 38 So. 873, 112 A. S. R. 259, 5 go to trial. Schumpert v. Southern 9. See infra, par. 19. 10. Durham v. Musselman, 2 Blackf. (Ind.) 96, 18 Am. Dec. 133; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573; The Uhla, 19 L. T. N. S. 89, 1 Eng. Rul. Cas. 210 and note. 11. The Uhla, 19 L. T. N. S. 89, 1 Eng. Rul. Cas. 210 and note. 12. Cosulich v. Standard Oil Co., 122 N. Y. 118, 25 N. E. 259, 19 A. S. R. 475; Donahue v. Kelly, 181 Pa. St. 93, 37 Atl. 186, 59 A. S. R. 632. 13. State v. Hansford, 76 Kan. 678, 92 Pac. 551, 14 L.R.A. (N.S.) 548. 14. Durham v. Musselman, 2 Blackf. (Ind.) 96, 18 Am. Dec. 133. See infra, par. 33-39. 15. Bolin v. Chicago, etc., R. Co., 108 Wis. 333, 84 N. W. 446, 81 A. S. R. 911. Note: 31 L.R.A. (N.S.) 158. Acts of negligence and acts of wilful tort may be commingled in one statement as causing an injury, if such pleading is sanctioned by statute, and the adverse party cannot require a separate statement of such acts, nor an election on which the plaintiff will 16. Louisville, etc., R. Co. v. Anchors, 114 Ala. 492, 22 So. 279, 62 A. S. R. 116; Bessemer Coal, etc., Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A.(N.S.) 389; Mobile, etc., R. Co. v. Smith, 153 Ala. 127, 45 So. 57, 127 A. S. R. 22; Birmingham R., etc., Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C 1037; Wilson v. Chippewa Valley Electric R. Co., 120 Wis. 636, 98 N. W. 536, 66 L.R.A. 912. 17. Paxton v. Boyer, 67 Ill. 132, 16 Am. Rep. 615; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573; Bolin v. Chicago, etc., R. Co., 108 Wis. 333, 84 N. W. 446, 81 A. S. R. 911; Rideout v. Winnebago Traction Co., 123 Wis. 297, 101 N. W. 672, 69 L.R.A. 601 and note. Proof that an act was negligently done will not sustain a charge that it was wilfully done. Birmingham Mineral R. Co. v. Jacobs, 92 Ala. 187, 9 So. 320, 12 L.R.A. 830. 18. Peoria Bridge Ass'n v. Loomis, 20 Ill. 235, 71 Am. Dec. 263; Chicago Rock Island, etc., R. Co. v. Hamler. |