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NE of the surprising facts in the history of our law is the unsettled state of its doctrine with respect to recovery for consequences. This is a fundamental point, both of civil and of criminal liability; volumes have been written about it in the last fifty years, yet we are apparently no nearer an accepted doctrine than we were three centuries ago. Four or five rules have been proposed, discussed, and found inadequate; all of them, in difficult cases, fail even to guide a jury, and no one has prevailed over the others.

The fruitlessness of the discussion seems to indicate one of two things. Either recovery for consequences depends entirely upon a question of fact, must in every case be left to a jury, and can never profitably be determined by the law or predicted by a lawyer; or else, if there is an underlying principle of law, we have not yet sought it in the right way, and must retrace our steps and try again from the beginning. The former opinion has been expressed, but it has found few advocates, and its adoption must surely be a last resort. It remains to start afresh. I do not propose in this article to formulate and attempt to support another alleged rule of law upon the subject, but to point out a new and what seems the right way of starting in order to reach a satisfactory goal.

The false direction first came, I think, from a misconception of the problem. The attempt made was to connect defendant with the result complained of by means of a train of events through which it was thought the active force set in motion by the defendant. could be traced. If, according to one form of statement, the result was not a remote consequence, or according to another form, it was the natural or probable consequence of what defendant did, liability for the result was thought to be established. The connection sought was one between the final result and defendant's original act. In seeking this connection the courts (at least in this century) professed to be guided by Lord Bacon's first maxim, "Causa proxima non remota spectatur."

1 For instance, by a majority of the court (Ladd, J., vigorously dissenting) in Gilman v. Noyes, 57 N. H. 627, Smith Cas. on Torts, 18.

A true reading of this maxim, in connection with the examples given by Bacon to support it, indicates quite the contrary course. If the maxim means anything, it is this: that in looking for the cause of a loss, in order to affix liability for it, one cannot go behind the last cause. Only one relation of cause and effect can be shown, - that between the final cause and its immediate effect. Liability for result and responsibility for final cause are inseparable given either, the other must exist; one wanting, the other cannot exist. To be liable for a loss, the responsibility of defendant for its final cause must be shown, and that alone. So understood, the maxim would be recognized as axiomatic if it had not been obscured by the mistaken discussion.'

Assuming the truth of the maxim, two results follow: first, that the direct cause of a result complained of must first be found, when it will appear as a combination of circumstances, of which the loss is the resultant; and the defendant's responsibility for this combination of circumstances must then be directly established, in accordance with some principle which it is the whole object of our study to determine.

It may be asked, What do we gain by this restatement of our problem, since we still have to seek for a principle which seems very much the same as that for which we have always been seeking? This, at any rate, that if the problem is correctly stated, the reasons for its existence and its solution are apparent. But we also get nearer to the defendant when we seek to connect him with the cause instead of the result, and it will probably appear that we thus eliminate a large part of the difficulty; and we do away at once with the consideration of this as a separate class of cases. We treat defendant's responsibility in the same way, wherever the question arises; whether he has set in motion a natural force, an animal, an agent, or an independent person. Let me now formulate the ideas I have put forward and explain my meaning by examples.

1. If one is legally responsible for an act, he is chargeable with the direct results of the act, however surprising.2

The simplest case is that of physical force. If I wrongfully bring my hand into contact with another's person or property, I

1 It is sufficiently clear that if defendant is liable for the result, he must be respon. sible for the final cause. The converse will be made evident, I hope, by what follows. 2 This principle was perhaps first pointed out in the brilliant if not altogether sound opinion of Wardlaw, J., in Harrison v. Berkeley, 1 Strob. L. 525, Smith Cas. Torts, 60.


am responsible for whatever results from the wrongful contact. by a mere unlawful touch I cause death or severe bodily harm to another (by reason, for example, of his delicate state of health), I am liable for the result either civilly1 or criminally. If I wrongfully cause A to put ketchup in a cask which has contained turpentine (though I do not know and have no reason to suspect that fact), I am responsible for the harm done to the ketchup by the combination. If I throw into the ocean a box belonging to A, which I have every reason to suppose empty, but there is hidden in it a purse of gold which is lost, I am liable for the loss.4

2. We mean by an act, in this use of the word, the whole combination of circumstances, the resultant of which is the harm complained of.

In all cases of personal injury or direct injury to property, the act is the physical contact between the person or property injured and the outside force. It is immaterial which element of the combination is the active one. My act is the same, whether I thrust a sharp stick into A, or fix the stick, and cause A to run upon it;5 whether I pour water over him, or cause him to jump into a river;6 whether I pack him in ice and salt, or cause him to be exposed to the freezing air; whether I throw him upon a pile of bricks, or by removing a staging cause a load of bricks to fall upon him.8 My act in these cases is not fastening the stick, inducing the man to jump, turning him out of doors, or removing the staging; it is bringing into contact with the man's body the stick, water, cold air, and bricks respectively. If I so negligently manage a vessel of which I am master as to run down and sink another vessel and drown a passenger in it, my act of injury is not the mismanagement of my vessel, but the fatal contact between the passenger and the ocean. My negligence is important only in determining whether I am responsible for that contact."

1 Tice v. Munn, 94 N. Y. 621; Brown v. C. M. & S. P. Ry., 54 Wis. 342; 1 Sedg. Dam. § 112.

2 State v. O'Brien, 81 Ia. 88, Beale Cas. Crim. L. 433.

8 Cunnington v. Great Northern Ry., 49 L. T. Rep. 392.

4 Eten v. Luyster, 60 N. Y. 252, Smith Cas. Torts, 55.

See Reg. v. Martin, 8 Q. B. D. 54.

6 See Reg. v. Pitts, C. & Marsh. 284.

7 See Hendrickson v. Com., 85 Ky. 281, Beale Cas. Crim. L. 430.

8 See Reg. v. Hughes, 7 Cox C. C. 301, 26 L. J. M. C. 202.

9 See a confusion on this point in the minds of some of the court in Reg. v. Keyn,

2 Ex. D. 63, 66, 150, 232; Beale Cas. Crim. L. 897, 915.

But usually the act of injury is more difficult to determine. If the complaint is, for instance, that defendant by personally injuring plaintiff caused him to lose the benefit of a contract he expected to make, this loss of contract is a resultant of two forces, willingness of A to contract with B, and absence of B. The act of injury is defendant's only if he is responsible for this combination of circumstances; his connection or want of connection with one factor is immaterial. If the complaint is for loss of a contract for the resale of an article at an advanced price, because of defendant's breach of contract to furnish the article, the factors of the combination which caused the loss seem to be the existence of a contract for resale at an advanced price, and inability of the present plaintiff to perform it; the latter factor being composed of two elements, non-delivery of the goods by defendant, and inability to get them elsewhere. If defendant is to pay damages for the loss, he must be shown to be legally responsible for this combination.1 If the complaint is of loss of use of a mill because defendant, a carrier, delayed transportation of a piece of machinery, the act of injury is a combination of intention to run the mill, inability to run it without such a piece of machinery, absence of the piece, and inability to get another like it. Defendant must be responsible for the combination of all these circumstances if he is to be made liable for the loss of use.2

3. In examining the responsibility for a given result, we must first determine the legal responsibility for the combination which directly led to the result. If responsibility for this combination is fixed upon a defendant, he is liable for the result which follows, however surprising, and however far removed from what was in the defendant's mind at the time the force was set in motion by him.

Defendant rescued one who was imprisoned in a civil suit; he is liable for the amount of the creditor's claim, no matter what it was.1 Defendant caused water to pour into plaintiff's mine; he is respon

1 See Grébert-Borgnis v. Nugent, 15 Q. B. Div. 85; Hinde v. Liddell, L. R. 10 Q. B. 265; Elbinger Actien-Gesellschaft v. Armstrong, L. R. 9 Q. B. 473; Horne v. Midland Ry., L. R. 7 C. P. 583, 8 C. P. 131; Booth v. Spuyten-Duyvil R. M. Co., 60 N. Y. 487; McHose v. Fulmer, 73 Pa. 363.

2 See Hadley v. Baxendale, 9 Ex. 341, 23 L. J. Ex. 179; N. Y. & C. Mining Co. v. Fraser, 130 U. S. 611.

8 Often called, in scholastic language, causa proxima or causa causans. I have called it the act of injury.

Kent v. Kelway, Lane, 70.

sible for the damage, though he did not know that the place into which the water flowed was a mine.1 Defendant threw a stone at deceased; the stone unexpectedly hit deceased on the head, and by a singular chance killed him. Defendant is guilty of manslaughter. A pregnant woman was put off a train at the wrong place; she was forced to walk three miles, and the result was a miscarriage. The act of injury consisted in placing the woman where she must walk, and the railroad company being responsible for that is liable for the direct though unexpected result. A railroad train was negligently stopped on a trestle, and the passenger allowed to alight under the supposition that the train had stopped at his station. He fell through the trestle, and suffered an injury which so weakened him that he died of a slight disease contracted before his recovery from the injury. The railroad company, being legally responsible for the combination of injury and disease, is liable for the unusual result.4

We see, then, how liability for the result follows from responsibility for its proximate cause. It remains necessary to establish a connection between defendant and the act of injury; but this is to be done upon general grounds of liability. Professor Wigmore has lately suggested certain principles upon which liability for a tort is to be determined. The same principles determine criminal responsibility, and I see no reason to assume that they are not also sufficient to determine the estimation of damages. Let us then see what will result from an application of these principles to our problem.

The defendant's act, in the first instance, consisted in setting some force in motion; and we are to hold him responsible for the act of injury on the ground that this force is a factor of the act. We are to show, then, in the first place, that the act may properly be called defendant's act because of this force which he set in motion; and that being done, we are to show that the defendant is to be held legally responsible for his act.

4. One at least of the factors of the act of injury must in a fair sense be due to the defendant. If the force he set in motion has become, so to speak, merged in the general forces which surround

1 Rylands v. Fletcher, L. R. 3 H. L. 330, Smith Cas. Torts, 316.

2 See Holly v. State, 10 Humph. 141.

Brown v. M. & S. P. Ry., 54 Wis. 342.

4 Terre Haute & I. R. R. v. Buck, 96 Ind. 346.


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