Leame against Bray
| Jurisdiction | England & Wales |
| Judgment Date | 21 May 1803 |
| Date | 21 May 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 724
IN THE COURT OF KING'S BENCH.
Distinguished, Holmes v. Mather, 1875, L. R. 10 Ex. 269. Considered, Stanley v. Powel [1891], 1 Q. B. 89.
[593] lbamb against bray. Saturday, May 21st, 1803. Where one accidentally drove his carriage against another's, the remedy is trespass and" not case, the injury being immediate from the act done, though he were no otherwise blame-able than driving on the wrong side of the road in a dark night. The distinction is, that where the injury is immediate from an act of force done by the defendant the remedy is in trespass; where the injury is only consequential to an act before done by the defendant, there an action on the case lies. [Distinguished, Holmes v. Mather, 1875, L. R. 10 Ex. 269. Considered, Stanley v. Powell [1891], 1 Q. B. 89.] This was an action of trespass, in which the plaintiff declared that the defendant with force and arms drove and struck a single-horse chaise which the defendant was then driving along the King's highway with such great force and violence upon and against the plaintiff's curricle drawn by two horses, and upon and against the said horses so drawing, &c., and in which said curricle the plaintiff was then and there riding with his servant, which servant was then driving the said curricle and horses along the King's highway aforesaid, that by means thereof the plaintiff's servant was thrown out of the curricle upon the ground, and the horses ran away with the curricle, and while the horses were so running away with the curricle the plaintiff, for the preservation of his life, jumped and fell from the curricle upon the ground and fractured his collar bone, &c. Plea, not guilty. It appeared in evidence at the trial before Lord Ellenborough C.J. at the last sittings at Westminster, that the accident described in the declaration happened in a dark night, owing to the defendant driving his carriage on the wrong side of the road, and the parties not being able to see ,each other; and that if the defendant had kept his right side there was ample room for the carriages to have passed without injury. But it did not appear that blame was imputable to the defendant in any other respect as to the manner of his driving. It was therefore objected for the defendant, that the injury having happened from negligence, and not wilfully, the proper remedy was by an action on the case and not of trespass vi et amis; and the plaintiff was thereupon nonsuited. [594] Gibbs and Park now shewed cause against a rule for setting aside the nonsuit, and admitted that there were many precedents of trespass vi et armis for an injury immediately proceeding from the party, although his will did not go along with his act; but here they contended that the injury was consequential and not immediately flowing from the forcible act of the defendant, and in such a case trespass will not lie unless such act be done wilfully : and they compared it to the case of one ship running down another, in all which cases the form of the action has been case and not trespass. Yet in the one case the ship is as much impelled by the agency of the captain as in the other the carriage is impelled by the agency of the driver. In both the injury happens not from the immediate personal act of the parties concerned, (a) 2 TermEep. 63. 3 EAST, 595, LEAME V. BRAY 725 but by subsequent contact of the subject matters derived from the impulse communicated for another and lawful purpose, but taking a direction at the time, either from the unskilfulness or negligence of the parties, beyond their control. Here the accident was solely imputable to the negligence of the defendant in driving on the wrong side of the road in a dark night; but the injury was occasioned by the carriage and horses, and not by his personal act. To make it his personal act it must be done wilfully. [Lord Ellenborough. I do not find that distinction laid down in any of the cases, that in order, to maintain trespass the act must be wilful. In Scott v. Shepherd (a)1, Lord C. J. de Grey said that trespass vi et armis lay...
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