Although it is clearly recognized today that negligence is thus essential to liability for unintentional injury, the common law was very slow in adopting this principle. The doctrine that a man was absolutely liable civilly for the direct consequence of his act, was for a long time firmly established. The right to inquire into the state of mind of the party causing the injury, was long the distinguishing mark between criminal and civil actions for trespasses. Thus in "The Case of the Thorns'' it was said, "If some one cuts trees and the boughs fall on a man and hurt him, in such a case, that man would have an action for trespass, and so, sir, if an archer shoots at a mark and his bow swerves in his hand and against his will he kills a man, this, as has been said, is no felony. But if he hurts a man with his arrow, this man will have a good action of trespass against him, although archery is lawful and the wrong which the archer did was against his will."

The modern rule on this subject may be taken as laid down in Castle vs. Dwyer.13 In this case the defendant, who was the colonel of a regiment of State militia, after exercising his men at target practice, caused them to be drawn up for a few volleys with blank cartridges. Precautions were taken to see that all balls were withdrawn from the guns, but through some accident balls remained in one or more of the guns, and when the first volley was fired the plaintiff, a spectator, was severely injured. While it was recognized in this case that liability in this class of cases was not absolute and that some negligence must be proved, it was held that there was negligence in this case in firing at all in the direction of a crowd of "Y. B., 6 Edw. IV, 7, p. 1, 18. 13 2 Keyes (N. Y.), 169.

Vol. IV.-12.

people without positive knowledge that each musket contained no more than a blank cartridge.

SECTION 85.

NEGLIGENCE IN THE FIELD OF TRESPASS

ON THE CASE.

The leading case on the subject of negligence in the class of torts, which are redressed under an action of trespass on the case, is the case of Parrott vs. Wells, known as "The Nitro-Glycerine Case.""14

In 1866, the defendants, who were expressmen, engaged in carrying packages between New York and California, by way of the Isthmus of Panama, received at New York a box containing nitro-glycerine to be carried to California. There was nothing in the appearance of the box tending to excite any suspicion of the character of its contents. It was received and carried in the usual course of business, no information being asked or given as to its contents. On arriving at San Francisco, California, its contents were leaking and resembled sweet oil. The box was then taken for examination, as was the custom with the defendants when any box carried by them appeared to be damaged to the premises occupied by them, which were leased from the plaintiff. Whilst an employee of the defendants, by their direction, was attempting to open the box, the nitro-glycerine exploded, injuring the premises occupied by them and other premises leased by the plaintiffs to and occupied by other parties. The defendants had no knowledge of, and no reason to suspect, the dangerous character of the contents. They repaired the injuries to the premises occupied by them; held that they were not liable for the damage caused by the accident to the premises occupied by other parties.

The Court in the course of their decision in this case said:

"The defendants, being innocently ignorant of the contents of the case received in the regular course of their business, were not guilty of negligence in introducing it into their place of business and handling it in the same manner as other packages of similar outward appearance were usually handled. 'Negligence,' has been defined to be 'the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do.' Blyth vs. Birmington Water Works, 11 Exch., 784. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances. What would be extreme care under one condition of knowledge, and one state of circumstances would be gross negligence with different knowledge and in changed circumstances. The law is reasonable in its judgment in this respect. It does not charge culpable negligence upon anyone who takes the usual precautions against accident, which careful and prudent men are accustomed to take under similar circumstances. Shear vs. Redb., Sec. 6.

"The case of Pierce vs. Winsor, 2 Cliff, 18, decided by Mr. Justice Clifford, in the Circuit Court of the District of Massachusetts, furnishes a pertinent illustration of this doctrine. There a general ship was put up for freight. Among other freight offered and taken was mastic, an article new in commerce, and which was so affected by the voyage that it injured other parts of the cargo in contact with it, and caused increased expenditure in discharging the vessel. The

court held the shipper and not the charterer liable, and observed that "The storage of the mastic was made in the usual way, and it is not disputed it would have been proper, if the article had been what it was supposed to be, when it was received and laden on board. Want of greater care in that behalf is not a fault, because the master had no means of knowledge that the article required any extra care or attention, beyond what is usual in respect to other goods.'

"This action is not brought upon the covenants of the lease; it is in trespass for injuries to the buildings of the plaintiff, and the gist of the action is the negligence of the defendants; unless that can be established they are not liable. The mere fact that injury has been caused is not sufficient to hold them. No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act, or by his omission, has violated some duty incumbent upon him, which has caused the injury complained of.

"The cases between passengers and carriers for injuries stand upon a different footing. The contract of the carrier being to carry safely, the proof of the injury usually establishes a prima facie case, which the carrier must overcome. His contract is shown, prima facie at least, to have been violated by the injury. Outside of these cases, in which a positive obligation is cast upon the carrier to perform a special service, the presumption is that the party has exercised such care as men of ordinary prudence and caution would exercise under similar circumstances and if he has not the plaintiff must prove it.

"Here no such proof was made, and the case stands as one of unavoidable accident, for the consequences of which the defendants are not responsible. The consequences of all such accidents must be borne by the sufferer as his misfortune.

"This principle is recognized and affirmed in a great variety of cases,-in cases where fire originating in one man's building has extended to and destroyed the property of others; in cases where injuries have been caused by fire ignited by sparks from steamboats or locomotives, or caused by horses running away, or by blasting rocks, and in numerous other cases which will readily occur to everyone. The rule deducible from them is, that the measure of care against accident, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own. Hoffman vs. Tuolumne County Water Co., 10 Dal., 413; Wolf vs. St. Louis Indep. Water Co., 10 Cal., 541; Tood vs. Cochell, 17 Cal., 97.

"And the principle is not changed whether the injury complained of follows directly or remotely from the act or conduct of the party. The direct or remote consequences of the act or conduct may determine the form of the action, whether it shall be case or trespass, where the forms of the common law are in use, but cannot alter the principle upon which liability is enforced or avoided. In Brown vs. Kendall, 6 Cush., 295, which was before the Supreme Court of Massachusetts, the action was in trespass for an assault and battery. The defendant was trying to part two dogs, fighting, and in raising his stick for that purpose accidentally struck the plaintiff in his