The Aeronaut in the Garden: A New (Old) Case on Foreseeability

Well, this is, so far as I can tell, the anniversary of my oldest memory.  I recall running up the stairs in our house to call mom to come down and watch the television--a little black and white set--because we were about to land on the moon.   

So, in honor of what Kim Krawiec has termed "Moon Day," I thought that I'd post about an obscure early nineteenth century case, of a balloonist.  The court referred to him as an "aeronaut."  He went up in  a balloon -- but not very far.  And as the balloonist -- who had fallen from the carriage-- dragged along the ground, he called for help.  Spectators ran after it ... into a neighbor's garden and trampled the crops in the garden.  The garden's owner sued the balloonist for damages and won in the New York.  The damages were upheld on appeal in Guille v. Swan, 19 John 381 (NY Sup. 1822).  

The syllabus from the reporter tells the story:

Swan sued Guille in the Justices' Court, in an action of trespass, for entering his close, and treading down his roots and vegetables, &c. in a garden in the city of New-York. The facts were, that Guille ascended in a balloon in the vicinity of Swan's garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan's field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred persons broke into Swan's garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about 15 dollars, but the crowd did much more. The plaintiff's damages, in all, amounted to 90 dollars. It was contended before the Justice, that Guille was answerable only for the damage done by himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for 90 dollars, on which the judgment was given, and for costs.

And Chief Justice Spencer's conclusion that the balloonists was liable for the consequences:

[I]t is certain, that the Æronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the enclosure? I think not.

Now there's a case we could have some fun with in torts!  (And in fact Dean Wigmore used to have fun with it; it's in his 1912 casebook.)  Makes me wonder what other cases are out there waiting to be rediscovered.

I talk more about the law in the garden in the antebellum era -- and especially about depictions of property in art and their relationship to property law in "Property and Progress: Antebellum Landscape Art and Property Law."

The image is from the Library of Congress; it is of Thaddeus Lowe in an observation balloon during the Civil War. Another image, from Harper's Weekly in 1861, is here.

Comments

[J.T.]

Hello.

The case is really interesting. I'm from Spain and I have studied this case as Law of Torts in the University. But I can't understand why the case is called "Guille v. Swan", when Swan sued Guille for the damages. It should be "Swan v. Guille", shouldn't it.

Thank you very much for the entry.

J.T.

[Alfred Brophy]

Swan (the gardener) sued and won at trial. At trial the case was called Swan v. Guille.

However, when Guille lost at trial, he had to appeal. On appeal the person appealing is (usually) listed first, hence the case was called Guille v. Swan.

[J.T.]

OK. It's clear. I hadn't thought of the possibility of an appeal.

Thanks again.

J.T.