from a superior agency, and without default on the part of the defendant, or blame imputable to him, an action for injury resulting from such accident is not maintainable.1 An accident is defined as an event happening unexpectedly and without fault. Thus one is not liable who drives against another by getting on the wrong side of the road in a dark night, or by pulling the wrong rein by mistake. So one is not liable for an accident or injury to person or property caused by his horse while unmanageable or running away without his fault. A person whose pistol goes off by accident and injures another is not liable therefor.5 The owner of a steam-boiler operated upon his own premises in a lawful manner is not

4 Rawle, 9; 26 Am. Dec. 111; Vincent v. Stinehour, 7 Vt. 62; 29 Am. Dec. 145; Bizzell v. Booker, 16 Ark. 308; Norris v. Litchfield, 35 N. H. 271; 69 Am. Dec. 546; Gault v. Humes, 20 Md. 297; Robinson v. R. R. Co., 32 Mich. 322; Toledo etc. R. R. Co. v. Daniels, 21 Ind. 162; Indianapolis etc. R. R. Co. v. Truitt, 24 Ind. 162; P. C. & S. R. R. Co. v. Smith, 26 Ohio St. 124; Burton v. Davis, 15 La. Ann. 448; Brown v. Collins, 53 N. H. 442; 16 Am. Rep. 372; Hanlon v. Ingram, 3 Iowa, 81; Morris v. Platt, 32 Conn. 75; Weaver v. Ward, Hob. 134; Gibbons v. Pepper, 1 Ld. Raym. 38; Lloyd v. Ogleby, 5 Com. B., N. S., 667; Cotton v. Wood, 8 Com. B., N. S., 566; Hammack v. White, 11 Com. B., N. S., 588; Alderson v. Waistell, 1 Car. & K. 357; Holmes v. Mather, L. R. 10 Ex. 261; 16 Am. Rep. 384; Dygert v. Bradley, 8 Wend. 469; Losee v. Buchanan, 51 N. Y. 476; 10 Am. Rep. 623; Clark v. Foot, 8 Johns. 421; Sheldon v. Sherman, 42 N. Y. 484; 1 Am. Rep. 569; Wilson v. Rockland Mfg. Co., 2 Harr. (Del.) 67; Spencer v. Campbell, 9 Watts & S. 32; Boynton v. Rees, 9 Pick. 527; Rockwood v. Wilson, 11 Cush. 221; Toledo etc. R. R. Co. v. Jones, 76 Ill. 311; Chicago etc. R. R. Co. v. Jacobs, 63 Ill. 178; Strouse 2. Whittlesey, 41 Conn. 559. The old law was more severe: See article of Judge Holmes in American Law Re

view, January, 1880; and see Jennings v. Fundeburg, 4 McCord, 161. There are some cases where a person is an insurer, and the question of negligence

or

care becomes irrelevant in deciding his responsibility; thus, for example, a common carrier, an innkeeper, the keeper of dangerous animals, the keeper of dangerous articles; so where the accident results from the doing of a wrongful act. These topics and liabilities are discussed elsewhere in this work. See Titles Bailments, Animals, Negligence; and see Assault, post.

Gault v. Humes, 20 Md. 297; Vincent v. Stinehour, 7 Vt. 62; 29 Am. Dec. 145; Harvey v. Dunlop, Hill & D. 193. Where an action is brought to recover damages on account of injury done by the accidental falling of a structure, proof that there was no fault or negligence imputable to the defendant, and that there was no original imperfection in the structure, is sufficient to avoid liability on his part: Burton v. Davis, 15 La. Ann. 448.

2 Leame v. Bray, 3 East, 593. 3 Wakeman v. Robinson, 1 Bing. 213.

Brown v. Collins, 53 N. H. 442; 16. Am. Rep. 372; Holmes v. Mather, 16 Am. Rep. 384; Vincent v. Stinehour, 7 Vt. 62; 29 Am. Dec. 145.

Sutton v. Bennett, 114 Ind. 243.

liable, without proof of negligence, to an adjoining owner for damage done to his property by reason of an accidental explosion of such boiler. The owner of property which, without his consent, is carried by flood or storm down a stream, and deposited upon the lands of another, is not liable for any damage occasioned, unless he reclaim the property. Encamping and hunting upon the public lands in a "wilderness" district is not such an illegal and mischevious act as will render the person responsible for all injury that may result to others, regardless of diligence, care, or prudence on his part to prevent such injury.3

5

§ 1014. Public Injury. For an injury which the party complainant suffers only as the rest of the public suffer, — that is, for a public injury as distinct from a private one, the law gives no right of action. But if he suffers special injury,- that is, over and above what the public suffer, then, though the act is also a crime, he has a remedy for damages. "Nor is it any objection to private actions that several may suffer special injuries from the same public offense. If many persons receive a private injury from a public nuisance, every man shall have his action, the test in each case being, not the 510; Powell v. Beniger, 91 Ind. 64; Morini v. Graham, 67 Cal. 130.

1Losee v. Buchanan, 51 N. Y. 476; 10 Am. Rep. 623. But see Wilson v. City of New Bedford, 108 Mass. 261; 11 Am. Rep. 352; and Cahill v. Eastman, 18 Minn. 324; 10 Am. Rep. 184.

2 Sheldon v. Sherman, 42 N. Y. 484; 1 Am. Rep. 569; Livezey v. Philadelphia, 64 Pa. St. 106; 3 Am. Rep. 578. Bizzell v. Booker, 16 Ark. 308.

4

Cooley on Torts, 88; Gates v. Blincoe, 2 Dana, 158; 26 Am. Dec. 440; Crominelin v. Coxe, 30 Ala. 318; 68 Am. Dec. 120; Seely v. Bishop, 19 Conn. 128; Baxter v. Winooski & Co., 22 Vt. 114; 52 Am. Dec. 84; Venard V. Cross, 8 Kan. 248; Lansing v. Smith, 4 Wend. 9; 21 Am. Dec. 89; Cole v. Sprowl, 35 Me. 161; 56 AmDec. 696; Yolo Co. v. Sacramento, 36 Cal. 193; Crook v. Pilcher, 61 Md.

"Cooley_on Torts, 89; Burrows v. Pixley, 1 Root, 362; 1 Am. Dec. 56; Marnot v. Stanley, 1 Man. & G. 568; Shulte V. Transfer Co., 50 Cal. 592; Abbott v. Mills, 3 Vt. 521; 23 Am. Dec. 222; Mills v. Hall, 9 Wend. 315; 24 Am. Dec. 160; Myers v. Malcolm, 6 Hill, 292; 41 Am. Dec. 744; Fort Plain Bridge Co. v. Smith, 30 N. Y. 62; Stetson v. Faxon, 19 Pick. 147; 31 Am. Dec. 123, and note; Cole v. Sprowl, 35 Me. 161; 56 Am. Dec. 696; Thayer v. Boston, 19 Pick. 511; 31 Am. Dec. 157; Enos v. Hamilton, 27 Wis. 256; Houck v. Wachter, 34 Md. 265; 6 Am. Rep. 332; Colburn v. Ames, 52 Cal. 385; 28 Am. Rep. 634.

number injured, but the special and personal character of the injury. A person may dam a navigable stream so as to ruin it as a highway, and in so doing may injure the several millers who were accustomed to make use of its water for operating their machinery. However numerous these millers may be, they do not in the aggregate constitute the public; and, in a legal sense, neither the public nor any other individual is concerned with the special damage which each of their number sustains."1

§ 1015. When Tort also a Crime. In England, when the act causing the injury is also an offense against the criminal law, the offense must first be prosecuted before the offender can be sued. "The law requires that before the party injured by any felonious act can seek civil redress for it, the matter should be disposed of before the proper criminal tribunal, in order that the justice of the country may be first satisfied in respect to the public offense; and after a verdict, either of acquittal or conviction, a civil action may be maintained." But this is not required in the United States; the civil suit and the criminal prosecution may go on together, or the one may be brought without the other. In an action to recover the

3

1 Cooley on Torts, 87; citing Ashby v. White, 2 Ld. Raym. 938; Henley v. Lyme Regis, 5 Bing. 91; 3 Barn. & Adol. 77; Nicholl v. Allen, 1 Best & S. 936; McKinnon v. Penson, 8 Ex. 319; King v. Richards, 8 Term Rep. 634. And see Lansing v. Smith, 4 Wend. 9; 21 Am. Dec. 89.

2

Crosby v. Leng, 12 East, 407.

3 Hyatt v. Adams, 16 Mich. 180; Foster v. Com., 8 Watts & S. 77; Blassingame v. Glaves, 6 B. Mon. 38; Hepburn's Case, 3 Bland, 114; Allison v. Bank, 6 Rand. 204; Ballew v. Alexander, 6 Humph. 433; Quimby v. Blackey, 63 N. H. 77; Nowlan v. Griffin, 68 Me. 235; 28 Am. Rep. 45, the court saying: "In Boody v. Keating, 4 Me. 164, and again in Crowell v. Merrick, 19 Me. 392, the court say that the rule that a civil action in behalf of the party injured

2

is suspended until a criminal prosecution has been commenced and disposed of, 'is limited to larcenies and burglaries.' The same opinion had before been expressed in Boardman v. Gore, 15 Mass. 331. In Boston etc. R. R. Co. v. Dana, 1 Gray, S3, where the defendant had made himself comparatively rich by stealing from the railroad company, the question was fully examined, and the court held that while it is undoubtedly the law in England that the civil remedy of the party injured by a felony is suspended till after the termination of a criminal prosecution against the offender, such had never been the law here. And such is the prevailing opinion in this country: B. & W. R. R. Co. v. Dana, 1 Gray, 83; Pettingill v. Riedout, 6 N. H. 454; 25 Am. Dec. 473; Piscataqua Bank v. Turnley, 1

value of property alleged to have been stolen from the plaintiff by the defendant, it is held that the right of action is not suspended until the determination of a criminal prosecution against the offender.' But a homicide. resulting from a collision of trains is prima facie felonious within a statute declaring that if the injury amounts to a felony, the person injured must concurrently or previously prosecute therefor, or allege a good excuse for failure to prosecute.2

3

§ 1016. Action for Causing Death - No Action at Common Law. No action lay at common law for causing the death of a human being. The act which caused the death might be the subject of an action, but not the death itself. Thus an action would lie by a parent or master for an injury to a child causing its death for the loss of service during the time between the receiving of the injury and its death, and also for medical attendance, ex penses of nursing, etc., during that time. An action at common law by a husband for the loss of his wife, by the careless and negligent act of a third party, could be sustained, where some period intervened between the time of the injury and the time of dissolution, during which he could be said to have suffered the loss of her services and society, and incurred expenses and undergone anxiety

Miles, 312; Cross v. Guthery, 2 Root, 90; 1 Am. Dec. 61; Patton v. Freeman, 1 N. J. L. 113; Hepburn's Case, 3 Bland, 114; Allison v. Farmers' Bank, 6 Rand, 223; White v. Fort, 3 Hawks, 251; Robinson v. Culp, 1 Const. (S. C.) 231; Story v. Hammond, 4 Ohio, 376; Ballew v. Alexander, 6 Humph. 433; Lofton r. Vogles, 17 Ind. 105; Boardman v. Gore, 15 Mass. 331; Howk v. Minnick, 19 Ohio St. 462; 2 Am. Rep. 413."

1 Howk v. Minnick, 19 Ohio St. 462; 2 Am. Rep. 413.

2

* Western etc. R. R. Co. v. Sawtell, 65 Ga. 235.

3 Baker v. Bolton, 1 Camp. 493; Higgins v. Butcher, Yel. 89; Carey v. K. R. Co., 1 Cush. 475; 48 Am. Dec. 616; Hubgh v. R. R. Co., 6 La. Ann. 495; 54

Am. Dec. 565; Shields v. Yonge, 15 Ga. 349; 60 Am. Dec. 698; Long v. Morrison, 14 Ind. 595; 77 Am. Dec. 73; Edgar v. Castello, 14 S. C. 20; 37 Am. Rep. 714; Chicago etc. R. R. Co. v. Schroeder, 18 Ill. App. 328; Holland v. R. R. Co., 144 Mass. 425. This principle is so well settled that the numerous cases in which it is laid down need not be cited: See 2 Thompson on Negligence, p. 1272, sec. 72, where the authorities are collected; but see Sullivan v. R. R. Co., 3 Dill. 334; Cutting v. Seabury, 1 Sprague, 522.

Osborn v. Gillett, L. R. 8 Ex. 88; Covington etc. R. R. Co. v. Packer, 9 Bush, 455; 15 Am. Rep. 725; Hyatt v. Adams, 16 Mich. 180.

and distress on her account.' So where a passenger is negligently killed by a railroad company his personal representatives could sue for the damage to his personal estate arising in his lifetime, from medical expenses, and loss to his business by his inability to attend to it.2

3

§ 1017. The Statutory Remedy.-But a statute in England, known as Lord Campbell's act, entitled "An act for the purpose of compensating families of persons killed by accidents," reciting that "no action at law is now maintainable against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrong-doer in such cases shall be answerable in damages for the injury so caused by him," provided that an action should be maintainable against a person causing the death of another through a wrongful act, neglect, or default, and though it was a felony; the action to be for the benefit of the wife, husband, parent, and child, and to be brought in the name of the executor or administrator within twelve months after the death. Similar statutes exist, with some difference of detail, in most of the states. The statutes are remedial in their nature, and should be liberally construed. They include corporations causing the death, as well as natural persons; and the statutes apply to marine torts, and to suits against

they are penal, and should be construed strictly: Lexington v. Lewis, 10 Bush, 677; Board v. Scearce, 2 Duvall, 576.

6

Chicago v. Mayor, 18 Ill. 349; Railway Co. v. Whitton's Adm'r, 13 Wall. 270; Southwestern R. R. Co. v. Paulk, 24 Ga. 356; Louisville etc. R. R. Co. v. Burke, 6 Cold. 45; Baker v. Bailey, 16 Barb. 54; Donaldson v. R. R. Co., 18 Iowa, 280; 87 Am. Dec. 391; Pennsylvania etc. R. R. Co. v. Vandiver, 42 Pa. St. 365; 82 Am. Dec. 520; Chicago 2. Starr, 42 Ill. 174; 89 Am. Dec. 422.