( 179 )
SOLLAMUTTU v. FRASER.
C. B., Colombo, 17,816.
Trespass—Careless and negligent driving—Damage to third party—inevitable
The driver, of the defendant’s horse, which had been alarmed by therattle of the shutters of a shop, could not rein in the animal, but was ableto some extent to guide it while rushing down the road. If he allowedthe horse to continue in the line it took, death would have ensued. Theonly alternative was to turn to the left and take the chance of passingbetween a tree and some carriages, among which was the plaintiff'scarriage. The driver guided the horse in that direction, but it cameviolently into collision with the plaintiff's horse and carriage, killing theplaintiff’s horse and injuring his carriage.
Held, in an action brought to recover damages, that plaintiff wasentitled to succeed.
Moncreiff, A.C.J.—All trespass is primd facie actionable. There isno action where the plaintiff himself has caused the injury, or wherethe acts complained of are due to inevitable accident, by which is meantan act which is neither intentional nor negligent.
HE facts of this case,as well as the authorities cited by
counsel, appear in the following judgment.
Bawa, for appellant.
Van Langenberg, for respondent.
3rd October. 1902. Moncreiff, A.C.J.—
The defendant was driving his carriage in Colombo, when therattling of some shutters in .the Arcade, opposite the Grand OrientalHotel, startled his horse. There is no reason to believe that thehorse was an excitable animal; but the sound alarmed it on thisoccasion, and it rushed down the road in the direction of the jetty.
( 180 )
The driver retained his presence of mind. He was unable tocontrol the horse, but to some extent he could guide it. At aparticular point of the road he had to choose between two evils.If he continued in his course, death would almost certainly haveensued. The alternative was to turn to the left. That he did,hoping he might pass between a tree and some carriages, amongstwhich was one belonging to the plaintiff. The learned Commis-sioner has examined the spot, and in his opinion the hope of thedefendant was quite illusory, because no . carriage could havepassed through the intervening space. The defendant’s horse andcarriage came into violent collision with those of the plaintiff,killing the horse and doing injury to the carriage. Upon thesematerials the plaintiff sued, alleging that the incident tookplace in consequence pf careless and negligent driving on thepart of the defendant.
The Commissioner has found that there was no negligenceon the part of the defendant, but he says that the defendantcannot be excused unless he is able to show that his act wasunavoidable, inasmuch as the defendant might have continuedon his course—he might, have drawn the horse to the right, butelected to draw it to the left. So the Commissioner thoughtthat the act was not unavoidable, and he gave judgment for theplaintiff.
The defendant says that the Commissioner's law is wrong.The matter was argued at some length in this Court. First,
I was referred to Voet 9, 1, 5, where it is stated that, if a horse ,which is not in an excitable state and not of fierce dispositioncauses damage accidentally to a bystander, neither the ownernor any one else is liable to be sued, so long as he is not infault. The subject is touched upon by Van Leeuwen, vol. II.,p. 322, where the principle is stated that “ he whose animalcauses damage to another must make compensation, or deliverup the animal for the same.” There appears to be some doubtwhether fjiat law prevails. Under the Code Civil the generalprinciple is that a man is responsible for, or liable to be calledupon to repair, the injury caused to another man through hisfault. The word is faute (id quod non jure fit). There is asubsidiary article in the Code to the effect that the owner ofan animal, or he who uses it, whilst he is so using it, is res-ponsible for the damage the animal causes, whether it is underhis charge, or whether it has escaped from it. That bald statementof the law is qualified by the jurisprudence of the French Courts,which lay clown that there is a presumption against him, unlessthere is proof that the case is one of pure accident or that the
( 181 )
act was the result of via major, or that it was due to some fault 1902.committed by the person injured. I quote that because it seems Octobers.to me to be substantially the law which prevails in England. For Monobbotvsome centuries the decisions of the English Courts were conflicting. A.GJ.But it seems to me that undoubtedly the general principle wasthat primd facie a man was liable to be sued in trespass—at allevents before the Judicature Act—for the wrongful act which hehad committed. After a long series of decisions, which were notall to the same effect, in the last century (1803), we find LordEllenborough, C.J., in Leame v. Bray (3 Eaet. 599), saying that itwas immaterial whether the injury was wliful or not. The samoJudge, seven years later, in .the case of Knapp v. Salisbury (2Campbell, 500), says:“ This is an action of trespass. If what
happened arose from inevitable accident or from the negligenceof the plaintiff, to be sure, the defendant is not liable ”. Ofcourse, if the plaintiff has been guilty of negligence, and hastherefore really brought about the injury inflicted upon him, theact is not that of the defendant, and an action will not lie againsthim. Therefore, we put that case out of consideration. But wecome to two later decisions which seem to bring the Englishcases to a point. One is Holmes v. Mather (10 Exch. 968), whereBaron Bramwell said that " if the act that does an injury isan act of direct force, vi et armis, trespass is the proper remedy(if there is any remedy) where the act is wrongful, either asbeing wilful or as being the result of negligence. Where the actis not wrongful for either of these reasons, no action is- maintain-able, though trespass would be the proper form of action if it were-wrongful.
The other case is Stanley v. Powell (1891). 1 Q. B., p. 93, a casewhere a sportsman, firing at a passing pheasant, struck with apellet, which had glanced off a tree, a man who was carrying hiscartridges. The whole history of this subject is gone into byDenman, J., who said that the jury had negatived negligence onthe part of the defendant, and so in that sense he -was not liable;but he added that, even if that consideration of negligence wasout of view, the injury was accidental, and' the defendant was notliable. Now, these two decisions I believe to be correct insubstance, although the statement of the law is somewhat turnedupside down. I take it to be a principle- of English Law that alltrespass is primd facie actionable; that there is no action wherethe plaintiff himself has been the cause of the.injury; that thereis no action where the acts complained of are due to an inevitableaccident, that is, as I understand the meaning of the word3, actswhich are not intentional and are not negligent. All acts which-
( 183 )
are neither of these two things are accidental. If sufficient careis taken, and there is no intention to do any wrong, there isnothing against the defendant but a case of accident.
Now, the Commissioner in this case, while holding the defen-dant was not negligent, say that the act, although not intentional, •although not negligent, was yet not inevitable. For the reasons 1have stated I think that the learned Commissioner is mistaken,that if a person, exercising all skill and presence of mind which arepossible under the circumstances in order to escape certain death,draws: his carriage from one side to another, he is doing a thingwhich he cannot be blamed for doing, and that, if injury resultsto a bystander, the injury is due to accident which cannot beavoided. For these reasons I think the appeal in this case shouldbe allowed.
SOLLAMUTTU v. FRASER