Art. 5. Acts of Necessity and Inevitable Accident.

good motives and for a justifiable end; so that against him the sufferer has no rightful claim." Stone v. The Mayor and Alder-. men, 25 Wend. 157, cited, together with Russell v. Mayor, 2 Den. 461, in People ex rel. Brisbane v. Common Council, 76 N. Y. 562.

SUBDIVISION 2.

Inevitable Accident.

An unexpected injury caused by operation of nature or by a person without intention or negligence, is an accident. Pollock on Torts, 164. An occurrence which could not have been avoided by any degree of care capable of being exercised under the circumstances is an accident. Standard Dictionary, 14. An accident is an event which happens unexpectedly and without fault, Cooley on Torts, 20. If the injury is caused purely by inevitable or unavoidable accident, while engaged in a lawful business, there is no legal liability. Shearman & Redfield on Negligence, § 53.

The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune. But anything is an accident which one could not fairly have been expected to contemplate as possible and, therefore, avoid. Holmes on the Common Law, 94.

"An accident is the happening of an event without the aid and the design of the person, and which is unforeseen." Paul v. Travelers' Ins. Co., 112 N. Y. 478.

The terms 66 I act of God" and "inevitable accident" have created a considerable amount of confusion in the law. Wright, J., in Merritt v. Earle, 29 N. Y. 117, says, that while these terms have been sometimes used in a similar sense and in equivalent terms, there is a distinction. That may be an inevitable accident which no foresight or precaution of man could prevent, but the phrase act of God" denotes natural accidents that could not happen by the intervention of man. The expression excludes all human.

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agency.

Again in Michaels v. N. Y. C. & H. R. R. R. Co., 30 N. Y. 564, the same justice says that in order to constitute an act of God there can be no co-operation of man or any admixture of human

means.

In Bullock v. Babcock, 3 Wend. 391, Marcy, J., says that if

Art. 5. Acts of Necessity and Inevitable Accident.

an accident happened entirely without the fault of the defendant, or any blame being imputable to him, the action will not lie.

In Harvey v. Dunlop, Lalor's Supp. to Hill & Denio, 193, Nelson, Ch. J., says: "All the cases concede that an injury arising from some inevitable accident, or, which in law or reason is the same thing, from an action that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility."

The leading case as to the application of the rule of inevitable accident is the Nitro-Glycerine Case, 15 Wall. 524. It was held that the consequence of an inevitable accident must be borne by the sufferer as his misfortune, a doctrine which is said to be recognized and affirmed in many cases. That the rule deducible from the cases is that the measure of care against accident which one must take to avoid responsibility is that which one of ordinary prudence and caution must use if his own interests were to be affected and the entire risk his own. Field, J., says, quoting the language of Justice Nelson, in Harvey v. Dunlop, Lalor's Supplement, 193: "No case or principle can be found, or if found can be maintained, subjecting an individual to liability for an act done without fault on his part."

In Cleveland v. New Jersey Steamboat Co., 125 N. Y. 299, cited in Hollenbeck v. Johnson, 79 Hun, 499-506, 29 N. Y. Supp. 945, it was held that the plaintiff could not recover because the accident resulted from causes which no human being up to that time could reasonably expect to occur, and was the result of causes for the existence of which no one was legally responsible. Same rule, Dougan v. Champlain Transportation Co., 56 N. Y. 1.

Exception from liability upon the ground of inevitable accident is closely allied with the rule that one is exempt from liability when in the exercise of common-law or statutory rights, as in Cosulich v. Standard Oil Co., 122 N. Y. 118, where it was held that the law does not impose upon one carrying on a lawful business upon his own lands the obligation of saving others from the consequence of inevitable accident. And the same principle is applied in Losee v. Buchanan, 51 N. Y. 476, where it was said that one holds his property subject to the risks that it may accidentally be injured by others, and that one must take the risk of being accidentally injured when it is without fault upon the part of another. The question involved is usually as to whether

Art. 6. Exercise of Common Law and Statutory Rights.

the accident was inevitable, and is frequently considered in connection with the application of the maxim res ipsa loquitur, which is held to apply where carelessness or willfulness would have produced the accident. Piehl v. Albany Ry. Co., 30 App. Div. 166, 51 N. Y. Supp. 755, affirmed in 162 N. Y. 617.

Common carriers are excused from carrying out their contracts for the carriage of goods by act of God, but not so by inevitable accident, although Johnson, J., goes so far as to hold that the accident causing the delay out of which that action arose was not an "inevitable accident." Merritt v. Earle, 29 N. Y. 115. See "Assault and Battery," subdivision "Accident."

ARTICLE VI.

EXERCISE OF COMMON LAW AND STATUTORY RIGHTS.

The exercise of ordinary rights for a legal purpose and in a lawful manner is no wrong, even if it causes damage. Pollock on Torts, 175, citing case from Year-Book of Henry IV.

If a man be injured by the lawful exercise of another's ordinary right he has no action, and it is immaterial whether the exercise of such rights is prompted by a malicious motive. Fraser, 21.

This principle is stated in Bishop on Non-Contract Law, § 109. He says: "Subject to the duty of abstaining from avoidable injury to others, it is every man's right to manage his own volitions, interests, and property as he will without liability to one casually harmed thereby. When the facts of a case permit a choice, he must adopt the course which will not impair another's rights to the exclusion of one which will. But no person may so exercise a right as to injure another's legally recognized right, if there is a way practically open to him whereby he can avoid it, and at the same time make his own right effectual."

Harm necessarily caused by the exercise of one's ordinary rights will not support an action. Hale on Torts, 55, citing Mogul Steamship Co. v. McGregor, 23 Q. B. 598; Respublica v. Sparhawk, 1 Dall. 357 (362); Mouse's Case, 12 Coke, 63; Maleverer v. Spinke, 1 Dyer, 36b; Brown v. Howard, 14 Johns. 119. Mogul Steamship Co. v. McGregor, 23 Q. B. 598, affirmed in H. of L. (1892), A. C. 25, holds that for one person to undersell another is not a wrong, though the seller may purposely dispose

Art. 6. Exercise of Common Law and Statutory Rights.

of the article at unremunerative prices for the purpose of attracting custom for other articles; and still further, that it is not a wrong to offer advantages to a customer to deal with the party offering the advantage, to the exclusion of rivals.

Bowen, L. J., in Mogul Steamship Co. Case, lays down clearly and forcibly the rule with regard to the power of a citizen to exercise his common rights. He says: "If a man be injured by the exercise of another's ordinary rights, he has no action. This immunity in the exercise of common rights is a restatement, in a somewhat different form, of the doctrine embodied in the damnum absque injuria." The right to transact business is a universal one. Damages consequent upon competition are not actioncompetition

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able. "To attempt to limit would probably be as hopeless an endeavor as the experiment of King Canute."

This question is very fully considered in Losee v. Buchanan, 51 N. Y. 476, upon discussion of the authorities in this country and England, questioning Fletcher v. Rylands (L. R., 1 Exch. 265) and holding a different rule. Earl, C., in the opinion (at p. 484), uses the following language: "We must have factories, machinery, dams, canals, and railroads. They are demanded by the manifold wants of mankind, and lay at the basis of all our civilization. If I have any of these upon my lands, and they are not a nuisance and are not so managed as to become such, I am not responsible for any damage they accidentally and unavoidably do my neighbor. He receives his compensation for such damage by the general good, in which he shares, and the right which he has to place the same things upon his lands. I may not place or keep a nuisance upon my land to the damage of my neighbor, and I have my compensation for the surrender of this right to use my own, as I will by the similar restrictions imposed upon my neighbor for my benefit. I hold my property subject to the risk that it may be unavoidably or accidentally injured by those who live near me; and as I move about upon the public highways and in all places where other persons may lawfully be, I take the risk of being accidentally injured in my person by them without fault on their part. Most of the rights of property, as well as of persons, in the social state, are not absolute but relative, and they must be so arranged and modified, not unnecessarily infringing upon natural rights, as upon the whole to promote the general welfare."

Art. 6. Exercise of Common Law and Statutory Rights.

In Seaman v. Mayor, 80 N. Y. 239, it is said that no person can be made liable for damages caused by a lawful structure without some fault.

In Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, it is said: "The principle that one cannot recover for injuries sustained from lawful acts done on one's own property without negligence and without malice, is well founded in the law. Every one has the right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of others, there is no legal cause of action against him."

And in Cosulich v. Standard Oil Co., 122 N. Y. 118, it is held that the law does not impose upon one conducting a lawful business upon his own lands the obligation of saving others harmless from the consequences of inevitable accidents; the limit of his duty, where no contract relations exist, is the exercise of reasonable care and caution to save others from injury."

Benner v. Atlantic Dredging Co., 134 N. Y. 156, is authority for the proposition that where a contractor is doing in an appropriate manner public work required by contract with the government, and exercises due care in the execution thereof, and injuries result to private property, he is not liable therefor.

An action will not lie against an owner of lands who, in digging a well upon his own premises, intercepts an underground current of water and prevents it reaching the springs or open running stream on the soil of another. Trustees of the Village of Delhi v. Youmans, 45 N. Y. 362; Bloodgood v. Ayers, 108 N. Y. 400. But see Van Wycklen v. City of Brooklyn, 118 N. Y. 424; Forbell v. City of New York, 164 N. Y. 522.

So darkening another's windows or depriving him of a prospect by building on one's own land invades no legal right. So as to digging by a person upon his own soil so as to endanger the foundation of the building of the adjoining owner, and numerous similar acts by an owner of the land, impairing the enjoyment and value of the land of another. Pickard v. Collins, 23 Barb. 444 (458).

"A man may do many things under a lawful authority, or on his own land, which may result in an injury to the property of others, without being answerable for the consequences. Indeed, an act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences