[ALFENUS libro secundo digestorum. ] §9.2.52.prSi ex plagis servus mortuus esset neque id medici inscienta aut domini neglegentia accidisset, recte de iniuria occiso eo agitur.
[ALFENUS, in the second book of the Digests.] If a slave should die from wounds, and this did not happen through the unskilfulness of the physician or the negligence of the master, an action is rightly brought for his having been unlawfully killed.
§9.2.52.1Tabernarius in semita noctu supra lapidem lucernam posuerat: quidam praeteriens eam sustulerat: tabernarius eum consecutus lucernam reposcebat et fugientem retinebat: ille flagello, quod in manu habebat, in quo dolor inerat, verberare tabernarium coeperat, ut se mitteret: ex eo maiore rixa facta tabernarius ei, qui lucernam sustulerat, oculum effoderat: consulebat, num damnum iniuria non videtur dedisse, quoniam prior flagello percussus esset.
A shopkeeper had placed a lantern on a stone in the pathway at night: a passerby had taken it away: the shopkeeper pursued him, demanded the lantern back, and held him as he fled: the other, with a whip he had in his hand, which had a sting in it, began to beat the shopkeeper in order to make him let go: from this, a greater brawl having arisen, the shopkeeper gouged out the eye of the one who had taken the lantern: he asked for advice, whether he should not be deemed to have given damage unlawfully, since he had been struck first with the whip.
respondi, nisi data opera effodisset oculum, non videri damnum iniuria fecisse, culpam enim penes eum, qui prior flagello percussit, residere: sed si ab eo non prior vapulasset, sed cum ei lucernam eripere vellet, rixatus esset, tabernarii culpa factum videri.
I replied that, unless he had gouged out the eye on purpose, he did not seem to have done damage unlawfully, for the fault lay with the one who struck first with the whip: but if he had not been beaten first by him, but had brawled when he wished to snatch the lantern from him, it would seem to have been done by the fault of the shopkeeper.
§9.2.52.2In clivo capitolino duo plostra onusta mulae ducebant: prioris plostri muliones conversum plostrum sublevabant, quo facile mulae ducerent: inter superius plostrum cessim ire coepit et cum muliones, qui inter duo plostra fuerunt, e medio exissent, posterius plostrum a priore percussum retro redierat et puerum cuiusdam obtriverat: dominus pueri consulebat, cum quo se agere oporteret.
On the Capitoline Hill, mules were drawing two loaded carts: the muleteers of the front cart were supporting the backward-turning cart so that the mules might draw it more easily: in the meantime, the upper cart began to go backward, and when the muleteers who were between the two carts had got out of the way, the rear cart, struck by the front one, rolled back and ran over someone's slave boy: the boy's master asked for advice, against whom he ought to bring an action.
respondi in causa ius esse positum: nam eam si muliones, qui superius plostrum sustinuissent, sua sponte se subduxissent et ideo factum esset, ut mulae plostrum retinere non possint atque onere ipso retraherentur, cum domino mularum nullam esse actionem, cum hominibus, qui conversum plostrum sustinuissent, lege aquilia agi posse: nam nihilo minus eum damnum dare, qui quod sustineret mitteret sua voluntate, ut id aliquem feriret: veluti si quis asellum cum agitasset non retinuisset, aeque si quis ex manu telum aut aliud quid immisisset, damnum iniuria daret.
I replied that the law is dependent on the facts: for if the muleteers who had supported the upper cart had withdrawn of their own accord, and for that reason it had happened that the mules could not hold the cart and were dragged back by the weight itself, there is no action against the owner of the mules, but an action can be brought under the Lex Aquilia against the men who had supported the backward-turning cart: for he no less gives damage who of his own will lets go what he was supporting so that it strikes someone; just as if someone, having driven a young ass, had not held it back, or likewise if someone had thrown a weapon or anything else from his hand, he would give damage unlawfully.
sed si mulae, quia aliquid reformidassent et muliones timore permoti, ne opprimerentur, plostrum reliquissent, cum hominibus actionem nullam esse, cum domino mularum esse.
But if the mules had abandoned the cart because they were frightened by something, and the muleteers, moved by fear of being crushed, had left it, there is no action against the men, but there is one against the owner of the mules.
quod si neque mulae neque homines in causa essent, sed mulae retinere onus nequissent aut cum coniterentur lapsae concidissent et ideo plostrum cessim redisset atque hi quo conversum fuisset onus sustinere nequissent, neque cum domino mularum neque cum hominibus esse actionem.
But if neither the mules nor the men were the cause, but the mules could not hold the load, or while striving they slipped and fell, and for that reason the cart rolled back, and those men could not support the weight where it had turned back, there is an action neither against the owner of the mules nor against the men.
illud quidem certe, quoquo modo res se haberet, cum domino posteriorum mularum agi non posse, quoniam non sua sponte, sed percussae retro redissent.
This indeed is certain, in whatever way the matter stood, that no action can be brought against the owner of the rear mules, since they did not go back of their own accord, but because they were struck.
§9.2.52.3Quidam boues uendidit ea lege, uti daret experiundos: postea dedit experiundos: emptoris servus in experiundo percussus ab altero boue cornu est: quaerebatur, num uenditor emptori damnum praestare deberet.
A certain man sold oxen under the condition that he should give them for trial: afterwards he gave them for trial: the buyer's slave, during the trial, was struck with a horn by one of the oxen: it was asked whether the seller ought to make good the damage to the buyer.
respondi, si emptor boues emptos haberet, non debere praestare: sed si non haberet emptos, tum, si culpa hominis factum esset, ut a boue feriretur, non debere praestari, si uitio bouis, debere.
I replied that if the buyer had the oxen purchased, he ought not to make it good: but if he did not have them purchased, then, if it happened through the fault of the man that he was struck by the ox, it ought not to be made good, but if through the defect of the ox, it ought to be.
§9.2.52.4Cum pila complures luderent, quidam ex his seruulum, cum pilam percipere conaretur, impulit, seruus cecidit et crus fregit: quaerebatur, an dominus seruuli lege Aquilia cum eo, cuius impulsu ceciderat, agere potest.
When several persons were playing ball, one of them pushed a slave boy as he was trying to catch the ball: the slave fell and broke his leg: it was asked whether the owner of the slave could bring an action under the Lex Aquilia against the one by whose push he had fallen.
respondi non posse, cum casu magis quam culpa uideretur factum.
I replied that he could not, since it seemed to have happened by accident rather than by fault.