2 The question under discussion was whether the action (for running down the plaintiff) should not have been case rather than trespass, the defendant founding his objection to trespass on the ground that the injury happened through his neglect, but was not done wilfully.  There was therefore no question of absolute responsibility for one’s acts [105] before the court, as negligence was admitted; and the language used is all directed simply to the proposition that the damage need not have been done intentionally.

In Wakeman v.  Robinson, 1another runaway case, there was evidence that the defendant pulled the wrong rein, and that he ought to have kept a straight course.  The jury were instructed that, if the injury was occasioned by an immediate act of the defendant, it was immaterial whether the act was wilful or accidental.  On motion for a new trial, Dallas, C. J. said, “If the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie ....The accident was clearly occasioned by the default of the defendant.  The weight of evidence was all that way.  I am now called upon to grant a new trial, contrary to the justice of the case, upon the ground, that the jury were not called on to consider whether the accident was unavoidable, or occasioned by the fault of the defendant.  There can be no doubt that the learned judge who presided would have taken the opinion of the jury on that ground, if he had been requested so to do.”  This language may have been inapposite under the defendant’s plea (the general issue), but the pleadings were not adverted to, and the doctrine is believed to be sound.

In America there have been several decisions to the point.  In Brown v.  Kendall, 2 Chief Justice Shaw settled the question for Massachusetts.  That was trespass for assault and battery, and it appeared that the defendant, while trying to separate two fighting dogs, had raised his stick over his shoulder in the act of striking, and had accidentally hit the plaintiff in the eye, inflicting upon him a [106] severe injury.  The case was stronger for the plaintiff than if the defendant had been acting in self-defence; but the court held that, although the defendant was bound by no duty to separate the dogs, yet, if he was doing a lawful act, he was not liable unless he was wanting in the care which men of ordinary prudence would use under the circumstances, and that the burden was on the plaintiff to prove the want of such care.

In such a matter no authority is more deserving of respect than that of Chief Justice Shaw, for the strength of that great judge lay in an accurate appreciation of the requirements of the community whose officer he was.  Some, indeed many, English judges could be named who have surpassed him in accurate technical knowledge, but few have lived who were his equals in their understanding of the grounds of public policy to which all laws must ultimately be referred.  It was this which made him, in the language of the late Judge Curtis, the greatest magistrate which this country has produced.