aExchequer

24 June 1875
(1874-75) L.R. 10 Ex. 261

Bramwell, Cleasby, and Pollock, BB.

1875 June 24
Trespass to the Person—Driving unmanageable Horses in the public Highway—Accidental
Injury—Vis Major—Master and Servant.
To maintain an action for injury to the person the injurious act must be wilful or the result of
negligence.
The defendant's horses, while being driven by his servant in the public highway, ran away,
and became so unmanageable that the servant could not stop them, but could, to some extent,
guide them. The defendant, who sat beside his servant, was requested by him not to interfere
with the driving, and complied. While unsuccessfully trying to turn a corner safely, the
servant guided them so that, without his intending it, they knocked down and injured the
plaintiff, who was in the highway. The plaintiff having sued the defendant for negligence and
in trespass, the jury found that there was no negligence in any one:—
Held, that, even assuming the defendant to be as much responsible as his servant, no action
was maintainable; for since the servant had done his best under the circumstances, the act of
alleged trespass in giving the horses the direction towards the plaintiff was not a wrongful
act.
Quoere, whether, if an action would have lain against the servant, it would also have lain
against the defendant.
THE first count of the declaration alleged that the female plaintiff was passing along a
highway, and the defendant so negligently drove a carriage and horses in the highway that
they ran against her and threw her down, whereby she and the male plaintiff were damnified.
The second count alleged that the defendant drove a carriage with great force and violence
against the female plaintiff and wounded her, whereby, &c.
Plea, not guilty, and issue thereon.
At the trial before Field, J., at the spring assizes for Durham, 1875, the following facts were
proved:—In July, 1874, the defendant kept two horses at a livery stable in North Shields, and
wishing to try them for the first time in double harness, had them harnessed together in his
carriage. At his request a groom drove, the defendant sitting on the box beside him. After
driving for a short time, the horses being startled by a dog which suddenly rushed out and
barked at them, ran away and became so unmanageable that the groom could not stop them,
though he could to some extent guide them. The groom begged the defendant to leave the
management to him, and the defendant accordingly *262 did not interfere. The groom
succeeded in turning the horses safely round several corners, and at last guided them into
Spring Terrace, at the end of which and at right angles runs Albion Street, a shop in Albion
Street being opposite the end of Spring Terrace. When they arrived at the end of Spring
Terrace the horses made a sudden swerve to the right, and the groom then pulled them more
to the right, thinking that was the best course, and tried to guide them safely round the corner.
He was unable to accomplish this, and the horses were going so fast that the carriage was
dashed against the palisades in front of the shop; one of the horses fell, and at the same time
the female plaintiff, who was on the pavement near the shop, was knocked down by the
horses and severely injured. The jury stopped the case before the close of the evidence
offered on the defendant's part, and said that in their opinion there was no negligence in any
one. The plaintiff's counsel contended that since the groom had given the horses the direction
which guided them against the female plaintiff, that was a trespass which entitled the
plaintiffs to a verdict on the second count.
The verdict was entered for the defendant, leave being reserved to the plaintiffs to move to
enter it for them for 50l. on the second count, the Court to be at liberty to draw inferences of
fact, and to make any amendment in the pleadings necessary to enable the defendant to raise
any defence that ought to be raised.
Herschell, Q.C., having obtained a rule nisi to enter the verdict for the plaintiffs for 50l.,
pursuant to leave reserved, on the ground that, upon the facts proved, the plaintiffs were
entitled to a verdict on the trespass count,
C. Russell, Q.C., and Crompton, for the defendant, shewed cause. The plaintiffs' contention
is, that the driver gave that direction to the horses which turned them on to the plaintiff; but
that is not clear upon the evidence. The horses swerved to the right, and the driver then pulled
them further to the right, thinking he could turn them completely round, and so stop them.
The horses struck the plaintiff while the driver was trying to pull them away from her.
Therefore the injury was not caused by the immediate act of the *263 driver. The jury having
found that there was no negligence, the action is not maintainable in any form. This principle
is laid down in the judgment of the Exchequer Chamber, in Fletcher v. Rylands 1:—
“But it was further said by Martin, B., that when damage is done to personal property, or even
to the person by collision, either upon land or at sea, there must be negligence in the party
doing the damage to render him legally responsible; and this is no doubt true, and, as was
pointed out by Mr. Mellish during his argument before us, this is not confined to cases of
collision, for there are many cases in which proof of negligence is essential, as, for instance,
where an unruly horse gets on the footpath of a public street and kills a passenger: Hammack
v. White 2: or where a person in a dock is struck by the falling of a bale of cotton which the
defendants' servants are lowering: Scott v. London Dock Co. 3; and many other similar cases
may be found. But we think these cases distinguishable from the present. Traffic on the
highways, whether by land or sea, cannot be conducted without exposing those whose
persons or property are near it to some inevitable risk; and that being so, those who go on the
highway, or have their property adjacent to it, may well be held to do so subject to their
taking upon themselves the risk of injury from that inevitable danger; and persons who by the
licence of the owner pass near to warehouses where goods are being raised or lowered,
certainly do so subject to the inevitable risk of accident. In neither case, therefore, can they
recover without proof of want of care or skill occasioning the accident.”

True, there are dicta in Leame v. Bray 4 that negligence is immaterial, but there is no such
decision. In that case and M'Laughlin v. Pryor 5 there was evidence of negligence for the
jury. So in Wakeman v. Robinson 6, where 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;” and see Gibbons v. Pepper 7 But assuming that the driver is liable in trespass,
the defendant took no part in the management of the horses, and *264 was not a participator
in the trespass. Assuming, for the sake of argument that the relation of master and servant
existed between the defendant and the groom, the mere presence of the master on the box is
not enough to fix him with liability for the trespass of the servant, though it might in an
action on the case for negligence 8 The groom had no implied authority from his master to
commit this trespass; the groom expressly took on himself the responsibility of management.
Trespass lies where the injury sued for is caused by the immediate and wilful force of the
defendant; or by his immediate force without wilfulness. But whether the act of the groom in
guiding the horses on to the plaintiff be considered immediate and wilful or not, in no sense
was it the immediate force of the defendant, and this is essential in trespass, Sharrod v.
London and North Western Ry. Co. 9, where Parke, B., delivering the judgment of the Court,
said: “When the act is that of the servant in performing his duty to his master, the rule of law
we consider to be that case is the only remedy against the master, and then only is
maintainable when that act is negligent or improper; and this rule applies to all cases where
the carriage or cattle of a master is placed in the care and under the management of a servant,
a rational agent. The agent's direct act or trespass is not the direct act of the master.” There
the plaintiff's sheep got upon the defendants' railway through defect of fences, and were run
over by a locomotive driven by the defendants' servants. Held, that, whether the facts would
or would not support an action on the case, trespass would not lie. Chandler v. Broughton 10
is the only case where a defendant has been held liable in trespass in consequence of his mere
presence at the time, and there negligence in putting the horse into a gig, was proved, for
which he was as much responsible as the driver. In the words of Manley Smith's Master and
Servant, 2nd ed. p. 209, citing M'Manus v. Crickett 11:
“Unless there be evidence of the concurrence of the master's will in the act of the servant, a
master can in no case be treated as a trespasser for the act of his servant.”

*265
Herschell, Q.C., and Gainsford Bruce, in support of the rule. But for the act of the groom in
directing the horses on to the plaintiff, they would have run into the shop, and the plaintiff
would have escaped. The groom may have been doing better for himself and the defendant in
avoiding the shop, but that does not justify him in guiding the horse on to the plaintiff. That
direction having been given by the immediate act of the driver, an action of trespass lies:
Leame v. Bray 12 There the defendant accidentally, and not wilfully, drove his carriage
against the plaintiff's carriage, and the question being whether the proper remedy was trespass
or case, it was held that the plaintiff had rightly brought trespass. Grose, J., said: “Looking
into all the cases from the Year Book in the 21 Hen. 7, down to the latest decision on the
subject, I find the principle to be, that if the injury be done by the act of the party himself at
the time, or he be the immediate cause of it, though it happen accidentally or by misfortune,
yet he is answerable in trespass.” And Lord Ellenborough says: “If the injurious act be the
immediate result of the force originally applied by the defendant, and the plaintiff be injured
by it, it is the subject of an action of trespass vi et armis, by all the cases both ancient and
modern. It is immaterial whether the injury be wilful or not.” This was followed and
approved in M'Laughlin v. Pryor 13 It is not disputed that the groom was doing all he could
to stop the horses, but as he still retained some control over them, the injury was the
immediate result of his act. Herein lies the distinction between the present case and
Hammack v. White 14, where the defendant had no control whatever over the horse, and did
all in his power to prevent him going where he did. Here the driver exercised control so far as
to pull them away from one direction into another, which took them on to the plaintiff.
[BRAMWELL, B. He was trying to divert them from that direction, but failed. It is not as if
he had said, “I must either drive into the shop or on to the plaintiff, and I'll do the latter.”]
In Hammack v. White 15 there was no count in trespass, and the *266 present point was not
taken. It only remains, then, to shew that the defendant is as much responsible as if he had
himself driven, and this is conclusively established by Chandler v. Broughton 16, which was
trespass for driving a gig against the church in Langham Place. The defendant was sitting by
his servant, who drove, and the horse ran away, and did the mischief. The plaintiff having
obtained a verdict, Bayley, B., reserved the point whether the action should have been in case,
but a rule nisi to enter a nonsuit was afterwards refused. Bayley, B., in giving judgment, said:
“The rule is this: if master and servant are sitting together, and the servant is driving the
master, the act of the servant is the act of the master, and the trespass of the servant is the
trespass of the master …. I think that where the master is sitting by the side of his servant,
and the servant does an act immediately injurious to the plaintiff, an action of trespass is the
proper remedy.” This decision and that of Leame v. Bray 17 were followed and approved in
M'Laughlin v. Pryor 18 There the defendant hired for the day a carriage and horses, which
were driven by postillions in the service of the owner of the horses, the defendant sitting on
the box. The postillions drove against the plaintiff's gig and injured it: held, that the defendant
was liable in trespass, though the postillions were not his servants. It is immaterial that in all
these cases there was negligence in the drivers; for, in considering whether trespass will lie,
negligence is not regarded. It is not an element in the question of trespass to land—why
should it be in trespass to the person? In Read v. Edwards 19 it was discussed whether the
owner of a dog is not answerable in trespass for every unauthorized entry of the animal on to
the land of another; and though the point was left undecided, the only doubt entertained was
one arising from the nature of the dog as distinguished from oxen or horses. Willes, J., there
referred to a case in the Year Book, 20 Edw. 4, Mich. Term., pl. 10., where the judges held
that trespass lay against the defendant, whose beasts having been turned out on an uninclosed
place where the defendant *267 had common, entered the adjoining land of the plaintiff, and
depastured his herbage, without the defendant's knowledge. This case was also cited by
Blackburn, J., in Fletcher v. Rylands 20 The defendant by his own volition set the carriage
and horses in motion; and if the result is that he can only save himself by injuring the
plaintiff, there is no justification for the injury. If somebody must suffer, why should it be the
innocent plaintiff, instead of the defendant, who chose to exercise his horses in the public
streets?
[BRAMWELL, B., referred to Mouse's Case 21]
BRAMWELL, B.
I am inclined to think, upon the authorities, that the defendant is in the same situation as the
man driving; but, without deciding that question, I assume, for the purposes of the opinion I
am about to express, that he is as much liable as if he had been driving.
Now, what do we find to be the facts? The driver is absolutely free from all blame in the
matter; not only does he not do anything wrong, but he endeavours to do what is the best to
be done under the circumstances. The misfortune happens through the horses being so
startled by the barking of a dog that they run away with the groom and the defendant, who is
sitting beside him. Now, if the plaintiff under such circumstances can bring an action, I really
cannot see why she could not bring an action because a splash of mud, in the ordinary course
of driving, was thrown upon her dress or got into her eye and so injured it. It seems manifest
that, under such circumstances, she could not maintain an action. For the convenience of
mankind in carrying on the affairs of life, people as they go along roads must expect, or put
up with, such mischief as reasonable care on the part of others cannot avoid. I think the
present action not to be maintainable.
That is the general view of the case. Now I will put it a little more specifically, and address
myself to the argument of Mr. Herschell. Here, he says, if the driver had done nothing, there
is no reason to suppose this mischief would have happened to the woman; but he did give the
horses a pull, or inclination, in the *268 direction of the plaintiff—he drove them there. It is
true that he endeavoured to drive them further away from the place by getting them to turn to
the right, but he did not succeed in doing that. The argument, therefore, is, if he had not given
that impulse or direction to them, they would not have come where the plaintiff was. Now, it
seems to me that argument is not tenable, and I think one can deal with it in this way. Here, as
in almost all cases, you must look at the immediate act that did the mischief, at what the
driver was doing before the mischief happened, and not to what he was doing next before
what he was then doing. If you looked to the last act but one, you might as well argue that if
the driver had not started on that morning, or had not turned down that particular street, this
mischief would not have happened.
I think the proper answer is, You cannot complain of me unless I was immediately doing the
act which did the mischief to you Now the driver was not doing that. What I take to be the
case is this: he did not guide the horses upon the plaintiff; he guided them away from her, in
another direction; but they ran away with him, upon her, in spite of his effort to take them
away from where she was. It is not the case where a person has to make a choice of two evils,
and singles the plaintiff out, and drives to the spot where she is standing. That is not the case
at all. The driver was endeavouring to guide them indeed, but he was taken there in spite of
himself. I think the observation made by my Brother Pollock during the argument is
irresistible, that if Mr. Herschell's contention is right, it would come to this: if I am being run
away with, and I sit quiet and let the horses run wherever they think fit, clearly I am not
liable, because it is they, and not I, who guide them; but if I unfortunately do my best to avoid
injury to myself and other persons, then it may be said that it is my act of guiding them that
brings them to the place where the accident happens. Surely it is impossible.
As to the cases cited, most of them are really decisions on the form of action, whether case or
trespass. The result of them is this, and it is intelligible enough: if the act that does an injury
is an act of direct force vi et armis, trespass is the proper *269 remedy (if there is any
remedy) where the act is wrongful, either as being wilful or as being the result of negligence.
Where the act is not wrongful for either of these reasons, no action is maintainable, though
trespass would be the proper form of action if it were wrongful. That is the effect of the
decisions. In Sharrod v. London and North Western Ry. Co. 22 the master was not present. In
M'Laughlin v. Pryor 23 the defendant was present, and was supposed to be taking part in the
control of the animals. In Leame v. Bray 24 there was an act of direct force vi et armis, and
there was negligence. I think, therefore, that our judgment should be for the defendant.
I think I could distinguish the case cited from the Year Book, but I will only say that there the
defendant let out animals, liable to stray, whether frightened or not, in a place not inclosed,
and without anybody to keep them in bounds.
CLEASBY, B.
I would only add a word as to a point on which my Brother Bramwell has not given
judgment, and that is this. This is not a case where the act that is done must be justified, as
where a man does a particular thing to avoid something else, but it is a case where it must be
shewn that it was the act of the defendant himself. I sum up all in these words: in my opinion,
the horses were not driven there by the defendant's servant, but they went there in spite of
him, so far as he directed them at all.
I want to say one other word. In my opinion it is not clear that the act was the act of the
master. To obtain a true test, we must look at all the circumstances, and particularly at the
position of things where persons are placed in a peculiar situation of danger. Here I
understand the case to be this: the master not having the same capacity for managing the
horses, and being perhaps alarmed and anxious to interfere, the servant says, “Leave it to me,
do not take any part.” The master complies. That would absolve him as far as any question of
personal negligence is concerned; and at that moment I think the act of the servant ceased to
be the act of the master. I think, in support of that, I need only read this passage from the
judgment of *270 Parke, B., in Sharrod v. London and North Western Ry. Co. 25, where he
says:
“In all cases where a master gives the direction and control over a carriage, or animal, or
chattel to another rational agent, the master is only responsible in an action on the case for
want of skill or care of the agent—no more.”

POLLOCK, B.
concurred.
Representation
Attorney for plaintiff: S. R. Hoyle, for Pybus, Newcastle.
Attorney for defendant: S. W. Johnson, for Tinley, Adamson, & Adamson, North
Shields.

Rule discharged.