The opinion of the coui’t was delivered by
Pierpoint, Oh. J.It appears that after the case had been submitted to the jury, and they had failed to agree upon a verdict, the court directed a verdict for the plaintiff, and had the jury assess the damages. This course was taken with a view of having the questions of law, raised upon the trial, determined by this court. This disposition of the case, we think, was erroneous ; for if the jux’y had found the facts to be as the defendant’s evidence tended to show, cleaxdy the plaintiff would not have been entitled to recover, as the injury in that case must have resulted from the act of the plaintiff’s team, and without fault on the part of the defendant. The evidence tending to establish such facts, we think was admissible, and was admitted without objection, under the general issue. The judgment of the county court must therefore be reversed.
The counsel on both sides have fully discussed the question, whether, upon the facts which the plaintiff’s evidence tends to establish, the action of trespass can be maintained. The defendant insists that the action should have been case. Without entering the field of discussion that has been so fruitful of legal learning and ingenuity in the attempt to define and apply the distinction between the action of trespass and case, it is sufficient to say, that the rule seems now to be well established by the authorities, that *688when the injury to the plaintiff results from the immediate force of the defendant, and is caused by his carelessness and negligence, and is not wilful, the plaintiff can maintain either trespass or case. See Smith Lead. Cas. 554, and the cases there referred to, and many others that it is not necessary here to refer to. The defendant relies much upon the case of Claflin v. Wilcox, 18 Vt. 605, as sustaining his view of the question. That was an action on the case ; the facts and principles there involved were much like the present. It was insisted in that case that trespass was the only remedy. Judge Rbdfield, who delivered the opinion of the court, after reviewing several of the cases, and criticising some of them quite sharply, decides that case is “ the. appropriate remedy ; ” but he concedes that for many injuries,' including a class of cases similar to the one then in hand, trespass a-nd case are concurrent, and that trespass could have been maintained in that case. If the learned judge had said that case was aw . appropriate remedy, instead of the appropriate remedy, we think- he would have more perfectly expressed his own idea, as the latter seems to imply that case was the only remedy, whereas the whole opinion shows it was not; and it is upon that particular expression that the' defendant relies as supporting his position. , If, in the class of cases like the present, trespass and case are 'concúrrent remedies, it is difficult to conceive of a reason, under, our practice, why one is not just as appropriate as the other. Since, under.our present statute, counts in trespass and case may be joined in the same,declaration’, there seems to be no good reason for adhering very closely to the old line of distinction between the two.
Judgment reversed, and cause remanded..