( Supreme Judicial Court of Mass. 1850)
Topic: embracing of concept of fault
- Can a person be liable in trespass without proof of negligence or fault
- Whether or not it was error for trial court to dismiss jury
- Who has the burden of proof to show that the defendant was not using ordinary care
- Vi et armis: By or with force and arms
- Ordinary care: cautious
- Liability for Negligence: The plaintiff cannot recover if both plaintiff and defendant were using ordinary care, or if the defendant was using ordinary care and the plaintiff was not, or if neither party was using ordinary care.
- Standard of Ordinary Care: The standard of ordinary care is determined on a case by case basis. It is that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger.
- Inevitable Accident: An inevitable accident in which the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency under the circumstances.