If a plea of accident (absence of negligence and fault) was necessary, the plaintiff by silence waived objection at the trial when an amendment of the pleadings could have been offered. All the facts were found by the referee upon a full trial of the question of negligence, as if that question was presented by the record. From the plaintiff's silence the defendants could fairly infer, and they could fairly act upon the inference, that the admissibility of their defence under the general issue was not contested. The objection, that the evidence of the defendants' exercise of due care is irrelevant on the general issue and inadmissible without a special plea, is not seasonably taken after trial. As the trial and the referee's finding of facts would not have been affected by a special plea of accident, such a plea, if necessary, could be filed now without a new trial. Roulo v. Valcour, 58 N.H. 347; Elsher v. Hughes,60 N.H. 469.
The referee's report, that there was no negligence or fault on either side, means that both parties exercised due care, and raises no legal question of degrees of diligence. The collision was not a common-law exception to the general common-law rule, that an accident, without actual fault in either party, is not a cause of action. Brown v. Kendall, 6 Cush. 292: Strouse v. Whittlesey, 41 Conn. 559; Brown v. Collins, 53 N.H. 442. Travelling on the left side of the road is not of itself unlawful. Gale v. Lisbon, 52 N.H. 174. In Brooks v. Hart, 14 N.H. 307, a legal presumption of fault was drawn from the fact that the defendant intentionally drove on the left side; but no opinion was given on a case of mere accident and misfortune, such as this is; — and it is not necessary to examine the soundness of a legal presumption drawn from intended presence on the left side. These defendants did not intentionally drive on the left side, and did not know their left wheel was on that side. Their ignorance was not culpable, and they are not liable, unless the presence of their left wheel on that side, without knowledge or actual fault on their part, was a violation of the statutory law of the road, and a constructive wrong. *Page 75
"Whoever travelling with any vehicle meets any other person so travelling, on a highway or bridge, shall seasonably turn to the right of the centre of the travelled part of the road,. so as to enable such person to pass with his vehicle without interference." "Every person violating" this law "shall be fined not more than ten dollars, and shall be liable for the damages occasioned thereby." G. L., c. 75, ss. 11-14. Upon this statute the defendants were not liable for damages in a civil action, unless they were also finable in a criminal prosecution. A mere physical act or omission without concurrence of the will may be punishable. A degree of diligence that will prevent harm may be made a legal duty; but a universal requirement of it has not been regarded as consistent with reasonably necessary enterprise, and that degree of freedom, comfort, and prosperity which the community have a right to enjoy. An act which a man does not intend to commit, of which he is unconscious, and for which he is in fact blameless, is not ordinarily imputed to him as a penal offence by the unwritten or the written law. Matter is not capable of crime; and the criminal law does not generally accomplish its object by a conclusive presumption of mental guilt contrary to the fact.
Since the statutory revision of 1867, the law of the road requiring travellers to turn to the right, and the law of the civil liability of towns for defective roads, have been united in one chapter under the title of "Damages happening in the use of highways." Chapter 74 subjects towns to indictment and fine for neglect of their highway duty. Construed by the analogy of the common law, which generally imposes liability for actual fault only, the statute does not punish a town, in no actual fault, for having no knowledge of an obstruction in a highway. Without intellectual delinquency found as a fact and not merely presumed by law, the town is not liable, in a criminal or a civil action, for damage caused by the obstruction. And no sufficient reason is suggested for construing the latter part of chapter 75 against the analogy of the common law, and holding this collision to be a constructive fault of the defendants, who were in no actual fault either for not knowing their left wheel was on the left side of the centre of the road, or for not knowing they were approaching the plaintiff's wagon.
The insertion of a count in assumpsit in the declaration would be an amendment that justice does not seem to require.
Exception overruled.
STANLEY, J., did not sit: the others concurred. *Page 76