Odger's English Common Law

472 TRESPASS TO THE PERSON.
move, I shall use such and such force,' is an assault. My impression is
that it is not.. I do not know at what distance it is necessary for the
party to be. No doubt, if you direct a weapon or if you raise your fist
within those limits which give you the means of striking, that may be an
assault ; but if you simply say at such a distance as that at which you
cannot commit an assault, ' I will commit an assault,' I think that is not an
assault." 1 " If a sword is flourished at such a distance that it would be
impossible to hurt any person, it would not be an assault." 2
(ii.) An action of battery.—A battery is the unlawful beating
of another—the least touching of another's person wilfully or
in anger. 3 Every man's person is sacred, and the law
protects it from the least interference by another. Every
battery, therefore, includes an assault.
As we have already seen, it will be a defence to any
action of trespass to the person, if the defendant can show
that the injury done to the plaintiff was the result neither of
any negligence nor of any intentional trespass on his part.
" If the circumstance, which is specially pleaded in an
action of trespass, do not make the act complained of lawful
and only make it excusable, it is proper to plead this circum-
stance in excuse ; and it is in this case necessary for the
defendant to show not only that the act complained of was
accidental (i.e., unintentional), but likewise that it was not
owing to neglect or want of due caution." 4
Hence, if the
injuries were caused by a pure accident, the plaintiff cannot
recover.
If the defendant is absolutely free from all blame in the matter, and was
endeavouring to do what was the best to be done under the circumstances
when the collision occurred, no action will lie against him. " For the
convenience of mankind in carrying on the affairs of life, people as they go
along roads must expect, or put up with, such mischief as reasonable care
on the part of others cannot avoid." 5
If an accident happens owing to the defendant driving his carriage at
night on the wrong side of the road, this is evidence from which a jury may
infer negligence, unless they be satisfied that the night was so dark that
it was impossible to distinguish oue side of the road from the other. 6
i Per Pollock, C. B., in Cobbett v. Grey (1850), 4 Exch. at p. 744.
2 Per Pollock, C. B., in Allsop v. Allsop (1866), 29 L. J. Ex. at p 316
» See 3 Bla. Com. 120.
4 Bacon's Abridgment, Trespass I., p. 706, cited with approval bv Denman J
'
in Stanley v. Powell, [1891] 1 Q. B. at p. 93. '
5 Per Biamwell, B., in Holmes v. Mather (1875), L. R. 10 Ex. at p. 267.
6 Leame v. Bray (1803), 3 East, 593, as explained by Denman, J., in Stanley ' v
Powell, [1891J 1 Q. B. at °«"»"T
p. 92.
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