Bullock v. Babcock

3 Wend. 391

• Court: New York Supreme Court
• Decided: October 15, 1829
• Status: Published

Opinion

By the Court,

Marcy, J.

It is not, I apprehend, necessary for us to say whether the judge erred or not in his remark to the jury that, under the circumstances of the case, the act of the defendant in shooting the arrow in the school room, where there were a number of scholars, was not lawful ; for if the act in itself was lawful, and there was not a proper care to guard against consequences injurious to others, the actor must be held responsible for such consequences.

In ordinary cases, if the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in damages to the sufferer. Where, in shooting at butts, the archer’s arrow glanced and struck another, it was holden to be a trespass. (Year Book, 21 H. 7, 28 a.) So where a number of persons were lawfully exercising themselves at arms, one whose gun accidentally went off was held liable in trespass for the injury occa sioned by the accident. Weaver v. Wood, (Hobart, 134.) In this case the action was assault and battery; and the plea was, that while the parties were skirmishing by order of the lords of the council, by way of military exercise, the defendant casualiter et per infortunium et contra voluntatem suam in discharging his musket, did the injury complained of. To this plea there was a demurrer, and judgment was given for the plaintiff In giving their opinion, the court say, “ If two men tilt or tourney in presence of the king, or if masters fence and the one Mils the other, or if a lunatic kills a man, it is not felony; yet, in trespass, which tends only to give damages according to the hurt or loss, it is not so. Therefore if a lunatic hurt a man, he shall be answerable in damages; and no man shall be excused of a trespass, except it may be adjudged utterly without his fault.” Where, in a dark night, the defendant got on the wrong side of the road, and an injury ensued to the person of the plaintiff, trespass for the damage was sustained. (3 East, 593.) It is decided in the case of Wakeman v. Robinson, (1 Bing. 213,) if the accident happen entirely without the fault of the defendant, or any blame being imputable to him, an action will not lie. In that case, the blame imputable to the defendant was, that his horse being young and spirited, he used him without .a curb rein; that in his alarm, he probably pulled the wrong rein; and that he ought to have continued on in a straight course. The blame fairly imputable to the defendant, it will be perceived, must have been slight indeed, as it certainly was in the case of the injury done by the glancing of the arrow when shooting at a mark, (a lawful act,) and by the accidental discharge of the musket at a training; and yet, in each of these cases, an action for the injury was maintained. Unless a rule is to be applied to this case different from that applicable to a transaction between adults, the proof was most abundant to charge the defendant with the consequences of the iniurv. T t . ■ .« , , ,. , . r J J Infants, in the same manner as adults, are liable for trespass, slander, assault, &c. (Bing. on Infancy, 110. 8 T. R. 335. Mass. Rep. 389. 2 Inst. 328.) Where infants are the actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults ; but such a distinction, if it exists, does not apply to this case. The liability to answer in damages for trespass does not depend upon the mind or capacity of the actors; for idiots and lunatics, as we see by the case reported in Hobart, are responsible in the action of trespass for injuries inflicted by them. (1 Chit. Pl. 66.)

Motion for new trial denied.