SOLLAMUTTU v. FRASER.

SOLLAMUTTU v. FRASER.

C. R., Colombo, 17,816.

Trespass-Careless and negligent driving-Damage to third party-inevitable accident.

The driver, of the defendant's horse, which had been alarmed by the rattle of the shatters of a shop, could not rein in the animal, but was able to some extent to guide it while rushing down the road. If he allowed the horse to continue in the line it took, death would have ensued. The only alternative was to turn to the left and take the chance of passing between a tree and some carriages, among which was the plaintiff's carriage. The driver guided the horse in that direction, but it came violently into collision with the plaintiff's horse and carriage, killing the plaintiff's horse and injuring his carriage.

Held, in an action brought to recover damages, that plaintiff was entitled to succeed.

Moncreiff, A.C.J.-All trespass is primâ facie actionable. There is no action where the plaintiff himself has caused the injury, or where the acts complained of are due to inevitable accident, by which is meant an act which is neither intentional nor negligent.

THE facts of this case, as well as the authorities cited by counsel, appear in the following judgment.

Bawa, for appellant.

Van Langenberg, for respondent.

3rd October. 1902. Moncreiff, A.C.J.-

The defendant was driving his carriage in Colombo, when the rattling of some shutters in the Arcade, opposite the Grand Oriental Hotel, startled his horse. There is no reason to believe that the horse was an excitable animal; but the sound alarmed it on this occasion, and it rushed down the road in the direction of the jetty.

The driver retained his presence of mind. He was unable to control the horse, but to some extent he could guide it. At a particular point of the road he had to choose between two evils. If he continued in his course, death would almost certainly have ensued. The alternative was to turn to the left. That he did, hoping he might pass between a tree and some carriages, amongst which was one belonging to the plaintiff. The learned Commissioner has examined the spot, and in his opinion the hope of the defendant was quite illusory, because no carriage could have passed through the intervening space. The defendant's horse and carriage came into violent collision with those of the plaintiff, killing the horse and doing injury to the carriage. Upon these materials the plaintiff sued, alleging that the incident took place in consequence of careless and negligent driving on the part of the defendant.

The Commissioner has found that there was no negligence on the part of the defendant, but he says that the defendant cannot be excused unless he is able to show that his act was unavoidable, inasmuch as the defendant might have continued on his course-he might have drawn the horse to the right, but elected to draw it to the left. So the Commissioner thought that the act was not unavoidable, and he gave judgment for the plaintiff.

The defendant says that the Commissioner's law is wrong. The matter was argued at some length in this Court. First, I was referred to Voet 9, 1, 5, where it is stated that, if a horse which is not in an excitable state and not of fierce disposition causes damage accidentally to a bystander, neither the owner nor any one else is liable to be sued, so long as he is not in fault. The subject is touched upon by Van Leeuwen, vol. II., p. 322, where the principle is stated that " he whose animal causes damage to another must make compensation, or deliver up the animal for the same." There appears to be some doubt whether that law prevails. Under the Code Civil the general principle is that a man is responsible for, or liable to be called upon to repair, the injury caused to another man through his fault. The word is faute (id quod non jure fit). There is a subsidiary article in the Code to the effect that the owner of an animal, or he who uses it, whilst he is so using it, is

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