Citation. Weaver v. Ward, 18 Fed. Appx. 697, 2001 Colo. J. C.A.R. 4393 (10th Cir. Okla. Aug. 29, 2001)
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Ward (Defendant) and Weaver (Plaintiff), both soldiers, were skirmishing with muskets when Defendant’s musket accidentally fired, injuring Plaintiff. Plaintiff brought an action of trespass of assault and battery against Defendant.
Synopsis of Rule of Law.
An inevitable accident is a defense to trespass.
Facts.
Plaintiff and Defendant were both soldiers. They were skirmishing with their muskets when Defendant’s musket accidentally discharged, injuring Plaintiff. Plaintiff brought an action of trespass of assault and battery against Defendant. Judgment was given for Plaintiff. Defendant appealed.
Issue.
Is an inevitable accident enough to constitute a trespass?
Held.
No.
* Defendant claimed that Plaintiff ran into the musket when it was discharging. It appeared to the Court that the discharge and injury to Plaintiff had been inevitable. Defendant had committed no negligence to give occasion to the hurt.
Discussion.
The court does not define what is meant by an inevitable accident. Here, Defendant did not act negligently, nor did he possess an intent to harm.
