THE MODERN CONCEPTION OF ANIMUS of the manner in which courts use evidence to favor a dominant class. Wakeman v. Robinson, decided in 1823, just at the time when the construction of the Liverpool and Manchester Railway was begun, -was a driving accident, like Leame v. Bray, and, on the authority of Leame v. Bray, the presiding judge ruled at nisi prius that "this being an action of trespass it was immaterial whether the act was will ful or accidental," that the defendant was liable for the injury, and there was a ver dict accordingly. On the argument before the full Bench, the chief justice thought that the defense of an innocent animus, or due care, was always open. At the trial it bad been excluded, nevertheless he held the verdict to be right because it appeared from the testimony reported that the defen dant had been negligent. From this reasoning I infer that, up to 1830, when the first railway was opened, the parties to an action for damages for tres pass to the person stood upon equal terms; that is to say, that when the plaintiff had proved an apparently unexcused injury, the burden rested on the defendant to excul pate himself. The Reform Bill of 1832 marked the down fall of the landed class in Great Britain, and forthwith centralized capital assumed con trol of the kingdom. Lord Abinger, among the judges, seems to have been the most sen sitive to the new impulsion. Under the conditions which had prevailed before the introduction of steam, masters had recog nized a general responsibility for the negli gence of their servants in the course of their employment, and this responsibility had not been felt to be particularly onerous. But when masses of labor collected in the service of railways and factories, it became clear that were masters made to answer for the animus of their servants among them selves, the results of their carelessness would certainly be costly, and might even im pair dividends. Therefore, in 1837, Lord Abinger repudiated this responsibility in
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Priestley v. Fowler 3 M. & W. 1. In 1842 Chief Justice Shaw followed Priestley v. Fowler in Farwell v. Boston & Worcester R.R. 4 Mete. 49, and this decision marks an economic revolution in Massachusetts as sharply as did Taltarum's case in England in 1472, when the feudal system broke down. Chief Justice Shaw's genius lay in his instinct for the social center of gravity, and keeping close to this he favored the defense in negligence cases for the rest of his life. He took a second long step in 1850, when he decided Brown v. Kendall, 6 Cush. 292. In Brown v. Kendall the plaintiff had been injured by an accidental blow from the defendant's stick while the defendant was trying to separate two fighting dogs. The chief justice took this opportunity to mani pulate the burden of proof. He held it to be insufficient for the plaintiff to show that he had been injured by the defendant, apparently without fault of his own, he insisted that the plaintiff must go further and prove affirma tively that the accident was caused by the reprehensible animus of the defendant. In other words, he must show before he could recover that the defendant had been lacking in that care for others which the ecclesias tical law exacted from all men. I need not point out the advantage this gave the de fendant. To a certain extent the railway is an insurer of the passenger, provided, in jurisdictions like Massachusetts, he can de monstrate that neither by word nor deed does he in any degree contribute to the dis aster which befalls him; but in its relations with the public at large, or its own em ployees, the railway is under no such dis ability, and plaintiffs, especially those who are poor, may often find it impossible to prove negligence, the more so as most of the evidence is likely to be under the cor poration's control. During the third quarter of the nineteenth century the power of centralized wealth grew almost unchecked, and appears to have culminated about 1870. As usual, the culminating point was marked by a decision.
