Inevitable Accident. In the cases we have just been considering the act by which the damage
is caused has been specially authorized. Let us now turn to the class of cases which differ from these in
that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then
and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall
assume from the first that there is no want of reasonable care on the actor’s part. For it is undoubted
that if by failure in due care I cause harm to another, however innocent my intention, I am liable. This
has already been noted in a general way. No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do. It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the “consummate care” of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the Edition: current; Page: class of cases where the facts are so given or determined as to exclude any negligence whatever.
Condition and inquiry. The question, then, is reduced to this, whether an action lies against me for harm
resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed.
On principle such accident excludes liability. It may seem to modern readers that only one solution of
the problem thus stated is possible, or rather that there is no problem at all. No reason is apparent for
not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have
been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first
impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do
not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case
admitting of doubt, that his neighbor harmed him by design or negligence. And one cannot see why a
man is to be made an insurer of his neighbor against harm which Edition: current; Page: (by our
hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution
cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner
and with reasonable care, hurts my neighbor by pure accident, it is not apparent why I should be liable
more than if the stick had been in another man’s hand. If we go far back enough, indeed, we shall find a
time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and
through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions
of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved,
as it was said, to a man’s death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man’s act is the apparent cause of mischief, the
burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented. But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed.
