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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER II.

PRINCIPLES OF LIABILITY.

Want of generality in early law.There is no express authority that I know of for stating as a general proposition of English law that it is a wrong to do wilful harm to one’s neighbour without lawful justification or excuse. Neither is there any express authority for the general proposition that men must perform their contracts. Both principles are in this generality of form or conception, modern, and there was a time when neither was true. Law begins not with authentic general principles, but with enumeration of particular remedies. There is no law of contracts in the modern lawyer’s sense, only a list of certain kinds of agreements which may be enforced. Neither is there any law of delicts, but only a list of certain kinds of injury which have certain penalties assigned to them. Thus in the Anglo-Saxon and other early Germanic laws we find minute assessments of the compensation due for hurts to every member of the human body, but there is no general prohibition of personal violence; and a like state of things appears in the fragments of the Twelve Tables(a) Whatever agreements are outside the specified forms of obligation and modes of proof are incapable of enforcement; whatever injuries are not in the table of compensation must go without legal redress. The phrase damnum sine iniuria, which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy.

General duty not to do harm in modern law. Such is not the modern way of regarding legal duties or remedies. It is not only certain favoured kinds of agreement that are protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which are themselves assignable to general principles of justice and policy. So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another. The situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop or walk into the street without being entitled to expect and bound to practise observance in this kind, as we shall more fully see hereafter. If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm; subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned—namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others—are all alike of a comprehensive nature. As our law of contract has been generalized by the doctrine of consideration and the action of assumpsit, so has our law of civil wrongs by the wide and various application of actions on the case(b) .

Acts in breach of specific legal duty. The commission of an act specifically forbidden by law, or the omission or failure to perform any duty specifically imposed by law, is generally equivalent to an act done with intent to cause wrongful injury. Where the harm that ensues from the unlawful act or omission is the very kind of harm which it was the aim of the law to prevent (and this is the commonest case), the justice and necessity of this rule are manifest without further comment. Where a statute, for example, expressly lays upon a railway company the duty of fencing and watching a level crossing, this is a legislative declaration of the diligence to be required of the company in providing against harm to passengers using the road. Even if the mischief to be prevented is not such as an ordinary man would foresee as the probable consequence of disobedience, there is some default in the mere fact that the law is disobeyed; at any rate a court of law cannot admit discussion on that point; and the defaulter must take the consequences. The old-fashioned distinction between mala prohibita and mala in se is long since exploded. The simple omission, after notice, to perform a legal duty, may be a wilful offence within the meaning of a penal statute(c) . As a matter of general policy, there are so many temptations to neglect public duties of all kinds for the sake of private interest that the addition of this quasi-penal sanction as a motive to their observance appears to be no bad thing. Many public duties, however, are wholly created by special statutes. In such cases it is not an universal proposition that a breach of the duty confers a private right of action on any and every person who suffers particular damage from it. The extent of the liabilities incident to a statutory duty must be ascertained from the scope and terms of the statute itself. Acts of Parliament often contain special provisions for enforcing the duties declared by them, and those provisions may be so framed as to exclude expressly, or by implication, any right of private suit(d) . Also there is no cause of action where the damage complained of “is something totally apart from the object of the Act of Parliament,” as being evidently outside the mischiefs which it was intended to prevent. What the legislature has declared to be wrongful for a definite purpose cannot be therefore treated as wrongful for another and different purpose(e) .

Duty of respecting property. As to the duty of respecting proprietary rights, we have already mentioned that it is an absolute one. Further illustration is reserved for the special treatment of that division of the subject.

Duties of diligence. Then we have the general duty of using due care and caution. What is due care and caution under given circumstances has to be worked out in the special treatment of negligence. Here we may say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence.

Assumption of skill. Moreover, if the party has taken in hand the conduct of anything requiring special skill and knowledge, we require of him a competent measure of the skill and knowledge usually found in persons who undertake such matters. And this is hardly an addition to the general rule; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriage, he is bound to have the ordinary competence of a coachman; if he will handle a ship, of a seaman; if he will treat a wound, of a surgeon; if he will lay bricks, of a bricklayer; and so in every case that can be put. Whoever takes on himself to exercise a craft holds himself out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must be reasonably skilled at his peril. As the Romans put it, imperitia culpae adnumeratur(f) . A good rider who goes out with a horse he had no cause to think ungovernable, and, notwithstanding all he can do to keep his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under control again(g) ; but if a bad rider is run away with by a horse which a fairly good rider could have kept in order, he will be liable.Exception of necessity. An exception to this principle appears to be admissible in one uncommon but possible kind of circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally entrusted to skilled persons is taken by an unskilled person; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an engineer without knowledge of navigation, or a sailor without knowledge of steam-engines. So if the driver and stoker of a train were both disabled, say by sunstroke or lightning, the guard, who is presumably unskilled as concerns driving a locomotive, is evidently not bound to perform the driver’s duties. So again, a person who is present at an accident requiring immediate “first aid,” no skilled aid being on the spot, must act reasonably according to common knowledge if he acts at all; but he cannot be answerable to the same extent that a surgeon would be. There does not seem to be any distinct authority for such cases; but we may assume it to be law that no more is required of a person in this kind of situation than to make a prudent and reasonable use of such skill, be it much or little, as he actually has.

Liability in relation to consequences of act or default. We shall now consider for what consequences of his acts and defaults a man is liable. When complaint is made that one person has caused harm to another, the first question is whether his act(h) was really the cause of that harm in a sense upon which the law can take action. The harm or loss may be traceable to his act, but the connexion may be, in the accustomed phrase, too remote. The maxim “In iure non remota causa sed proxima spectatur” is Englished in Bacon’s constantly cited gloss: “It were infinite for the law to judge the causes of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking to any further degree”(i) . Liability must be founded on an act which is the “immediate cause” of harm or of injury to a right. Again, there may have been an undoubted wrong, but it may be doubted how much of the harm that ensues is related to the wrongful act as its “immediate cause,” and therefore is to be counted in estimating the wrong-doer’s liability. The distinction of proximate from remote consequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded.Measure of damages. The normal form of compensation for wrongs, as for breaches of contract, in the procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direction of a judge. It is the duty of the judge(k) to explain to the jurors, as a matter of law, the footing upon which they should calculate the damages if their verdict is for the plaintiff. This footing or scheme is called the “measure of damages.” Thus, in the common case of a breach of contract for the sale of goods, the measure of damages is the difference between the price named in the contract and the market value of the like goods at the time when the contract was broken. In cases of contract there is no trouble in separating the question whether a contract has been made and broken from the question what is the proper measure of damages(l) . But in cases of tort the primary question of liability may itself depend, and it often does, on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. The measure of damages, a matter appearing at first sight to belong to the law of remedies more than of “antecedent rights,” constantly involves, in the field of torts, points that are in truth of the very substance of the law. It is under the head of “measure of damages” that these for the most part occur in practice, and are familiar to lawyers; but their real connexion with the leading principles of the subject must not be overlooked here.

Meaning of “immediate cause.” The meaning of the term “immediate cause” is not capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed “immediate,” “proximate,” or, to anticipate a little, “natural and probable,” which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was “immediate” or not does not matter. That which a man actually foresees is to him, at all events, natural and probable.

Liability for consequences of wilful act: In the case of wilful wrong-doing we have an act intended to do harm, and harm done by it. The inference of liability from such an act (given the general rule, and assuming no just cause of exception to be present) may seem a plain matter. But even in this first case it is not so plain as it seems. We have to consider the relation of that which the wrong-doer intends to the events which in fact are brought to pass by his deed; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the resulting hurt.it extends to some consequences not intended. But the consequence may be more than was intended, or different. And it may be different either in respect of the event, or of the person affected. Nym quarrels with Pistol and knocks him down. The blow is not serious in itself, but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence from that which was intended happens as an incident of the same action. Again, one of Jack Cade’s men throws a stone at an alderman. The stone misses the alderman, but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol; and, taking him for Pistol, Bardolph and Nym seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redress, as if Bardolph and Nym meant to beat Poins, and not Pistol(m) . Or, to take an actual and well-known case in our books(n) , Shepherd throws a lighted squib into a building full of people, doubtless intending it to do mischief of some kind. It falls near a person who, by an instant and natural act of self-protection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave harm to any one; but he is none the less liable to Scott. And so in the other cases put, it is clear law that the wrong-doer is liable to make good the consequences, and it is likewise obvious to common sense that he ought to be. He went about to do harm, and having begun an act of wrongful mischief, he cannot stop the risk at his pleasure, nor confine it to the precise objects he laid out, but must abide it fully and to the end.

“Natural consequences:” relation of the rule to the actor’s intention. This principle is commonly expressed in the maxim that “a man is presumed to intend the natural consequences of his acts:” a proposition which, with due explanation and within due limits, is acceptable, but which in itself is ambiguous. To start from the simplest case, we may know that the man intended to produce a certain consequence, and did produce it. And we may have independent proof of the intention; as if he announced it beforehand by threats or boasting of what he would do. But oftentimes the act itself is the chief or sole proof of the intention with which it is done. If we see Nym walk up to Pistol and knock him down, we infer that Pistol’s fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has no real intention at all, at any rate none which can be imputed to Nym awake. But we do naturally infer intention, and the chances are greatly in favour of our being right. So nobody could doubt that when Shepherd threw a lighted squib into a crowded place he expected and meant mischief of some kind to be done by it. Thus far it is a real inference, not a presumption properly so called. Now take the case of Nym knocking Pistol over a bank into the ditch. We will suppose there is nothing (as there well may be nothing but Nym’s own worthless assertion) to show whether Nym knew the ditch was there; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough to be insoluble. How shall we deal with them? We shall disregard them. From Nym’s point of view his purpose may have been simply to knock Pistol down, or to knock him into the ditch also; from Pistol’s point of view the grievance is the same. The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only consequential on the strictly wilful wrong. We say that intention is presumed, meaning that it does not matter whether intention can be proved or not; nay, more, it would in the majority of cases make no difference if the wrong-doer could disprove it. Such an explanation as this—“I did mean to knock you down, but I meant you not to fall into the ditch”—would, even if believed, be the lamest of apologies, and it would no less be a vain excuse in law.

The habit by which we speak of presumption comes probably from the time when,Meaning of “natural and probable” consequence. inasmuch as parties could not give evidence, intention could hardly ever be matter of direct proof. Under the old system of pleading and procedure, Brian C. J. might well say, “the thought of man is not triable”(o) . Still there is more in our maxim than this. For although we do not care whether the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as possible; so that it would not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such consequences ensuing. This is the limit introduced by such terms as “natural”—or more fully, “natural and probable”—consequence(p) . What is natural and probable in this sense is commonly, but not always, obvious. There are consequences which no man could, with common sense and observation, help foreseeing. There are others which no human prudence could have foreseen. Between these extremes is a middle region of various probabilities divided by an ideal boundary which will be differently fixed by different opinions; and as we approach this boundary the difficulties increase. There is a point where subsequent events are, according to common understanding, the consequence not of the first wrongful act at all, but of something else that has happened in the meanwhile, though, but for the first act, the event might or could not have been what it was(q) . But that point cannot be defined by science or philosophy(r) ; and even if it could, the definition would not be of much use for the guidance of juries. If English law seems vague on these questions, it is because, in the analysis made necessary by the separation of findings of fact from conclusions of law, it has grappled more closely with the inherent vagueness of facts than any other system. We may now take some illustrations of the rule of “natural and probable consequences” as it is generally accepted. In whatever form we state it, we must remember that it is not a logical definition, but only a guide to the exercise of common sense. The lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause.

Vandenburgh v. Truax. In Vandenburgh v. Truax(s) , decided by the Supreme Court of New York in 1847, the plaintiff’s servant and the defendant quarrelled in the street. The defendant took hold of the servant, who broke loose from him and ran away; “the defendant took up a pick-axe and followed the boy, who fled into the plaintiff’s store, and the defendant pursued him there, with the pick-axe in his hand.” In running behind the counter for shelter the servant knocked out the faucet from a cask of wine, whereby the wine ran out and was lost. Here the defendant (whatever the merits of the original quarrel) was clearly a wrong-doer in pursuing the boy; the plaintiff’s house was a natural place for his servant to take refuge in, and it was also natural that the servant, “fleeing for his life from a man in hot pursuit armed with a deadly weapon,” should, in his hasty movements, do some damage to the plaintiff’s property in the shop.

Guille v. Swan. There was a curious earlier case in the same State(t) , where one Guille, after going up in a balloon, came down in Swan’s garden. A crowd of people, attracted by the balloon, broke into the garden and trod down the vegetables and flowers. Guille’s descent was in itself plainly a trespass; and he was held liable not only for the damage done by the balloon itself but for that which was done by the crowd. “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”(u) . In both these cases the squib case was commented and relied on. Similarly it has many times been said, and it is undoubted law, that if a man lets loose a dangerous animal in an inhabited place he is liable for all the mischief it may do.

Liability for consequences of trespass. The balloon case illustrates what was observed in the first chapter on the place of trespass in the law of torts. The trespass was not in the common sense wilful; Guille certainly did not mean to come down into Swan’s garden, which he did, in fact, with some danger to himself. But a man who goes up in a balloon must know that he has to come down somewhere, and that he cannot be sure of coming down in a place which he is entitled to use for that purpose, or where his descent will cause no damage and excite no objection. Guille’s liability was accordingly the same as if the balloon had been under his control, and he had guided it into Swan’s garden. If balloons were as manageable as a vessel at sea, and by some accident which could not be ascribed to any fault of the traveller the steering apparatus got out of order, and so the balloon drifted into a neighbour’s garden, the result might be different. So, if a landslip carries away my land and house from a hillside on which the house is built, and myself in the house, and leaves all overlying a neighbour’s field in the valley, it cannot be said that I am liable for the damage to my neighbour’s land; indeed, there is not even a technical trespass, for there is no voluntary act at all. But where trespass to property is committed by a voluntary act, known or not known to be an infringement of another’s right, there the trespasser, as regards liability for consequences, is on the same footing as a wilful wrong-doer.

Consequence too remote: Glover v. L. & S. W. Rail. Co. A simple example of a consequence too remote to be ground for liability, though it was part of the incidents following on a wrongful act, is afforded by Glover v. London and South Western Railway Company(v) . The plaintiff, being a passenger on the railway, was charged by the company’s ticket collector, wrongly as it turned out, with not having a ticket, and was removed from the train by the company’s servants with no more force than was necessary for the purpose. He left a pair of race-glasses in the carriage, which were lost; and he sought to hold the company liable not only for the personal assault committed by taking him out of the train, but for the value of these glasses. The Court held without difficulty that the loss was not the “necessary consequence” or “immediate result” of the wrongful act: for there was nothing to show that the plaintiff was prevented from taking his glasses with him, or that he would not have got them if after leaving the carriage he had asked for them.

Question of what is killing in criminal law. In criminal law the question not unfrequently occurs, on a charge of murder or manslaughter, whether a certain act or neglect was the “immediate cause” of the death of the deceased person. We shall not enter here upon the cases on this head; but the comparison of them will be found interesting. They are collected by Sir James Stephen(x) .

Liability for negligence depends on probability of consequence, i.e., its capability of being foreseen by a reasonable man. The doctrine of “natural and probable consequence” is most clearly illustrated, however, in the law of negligence. For there the substance of the wrong itself is failure to act with due foresight: it has been defined as “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”(y) . Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Greenland v. Chaplin(z) , namely, “that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur,” appears to contain the only rule tenable on principle where the liability is founded solely on negligence. “Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated,” may be the ground of legal compensation under some rule of exceptional severity, and such rules, for various reasons, exist; but under an ordinary rule of due care and caution it cannot be taken into account.

Examples: We shall now give examples on either side of the line.

Hill v. New River Co. In Hill v. New River Company(a) , the defendant company had in the course of their works caused a stream of water to spout up in the middle of a public road, without making any provision, such as fencing or watching it, for the safety of persons using the highway. As the plaintiff’s horses and carriage were being driven along the road, the horses shied at the water, dashed across the road, and fell into an open excavation by the roadside which had been made by persons and for purposes unconnected with the water company. It was argued that the immediate cause of the injuries to man, horses, and carriage ensuing upon this fall was not the unlawful act of the water company, but the neglect of the contractors who had made the cutting in leaving it open and unfenced. But the Court held that the “proximate cause” was “the first negligent act which drove the carriage and horses into the excavation.” In fact, it was a natural consequence that frightened horses should bolt off the road; it could not be foreseen exactly where they would go off, or what they might run against or fall into. But some such harm as did happen was probable enough, and it was immaterial for the purpose in hand whether the actual state of the ground was temporary or permanent, the work of nature or of man. If the carriage had gone into a river, or over an embankment, or down a precipice, it would scarcely have been possible to raise the doubt.

Williams v. G. W. Rail. Co.Williams v. Great Western Railway Company(b) is a stronger case, if not an extreme one. There were on a portion of the company’s line in Denbighshire two level crossings near one another, the railway meeting a carriage-road in one place and a footpath (which branched off from the road) in the other. It was the duty of the company under certain Acts to have gates and a watchman at the road crossing, and a gate or stile at the footpath crossing; but none of these things had been done.

“On the 22nd December, 1871, the plaintiff, a child of four and a-half years old, was found lying on the rails by the footpath, with one foot severed from his body. There was no evidence to show how the child had come there, beyond this, that he had been sent on an errand a few minutes before from the cottage where he lived, which lay by the roadside, at about 300 yards distance from the railway, and farther from it than the point where the footpath diverged from the road. It was suggested on the part of the defendants that he had gone along the road, and then, reaching the railway, had strayed down the line; and on the part of the plaintiff, that he had gone along the open footpath, and was crossing the line when he was knocked down and injured by the passing train.”

On these facts it was held that there was evidence proper to go to a jury, and on which they might reasonably find that the accident to the child was caused by the railway company’s omission to provide a gate or stile. “One at least of the objects for which a gate or stile is required is to warn people of what is before them, and to make them pause before reaching a dangerous place like a railroad”(c) .

Bailiffs of Romney Marsh v. Trinity House. In Bailiffs of Romney Marsh v. Trinity House(d) , a Trinity House cutter had by negligent navigation struck on a shoal about three-quarters of a mile outside the plaintiffs’ sea-wall. Becoming unmanageable, the vessel was inevitably driven by strong wind and tide against the sea-wall, and did much damage to the wall. It was held without difficulty that the Corporation of the Trinity House was liable (under the ordinary rule of a master’s responsibility for his servants, of which hereafter) for this damage, as being the direct consequence of the first default which rendered the vessel unmanageable.

Lynch v. Nurdin. Something like this, but not so simple, was Lynch v. Nurdin(e) , where the owner of a horse and cart left them unwatched in the street; some children came up and began playing about the cart, and as one of them, the plaintiff in the cause, was climbing into the cart another pulled the horse’s bridle, the horse moved on, and the plaintiff fell down under the wheel of the cart and was hurt. The owner who had left the cart and horse unattended was held liable for this injury. The Court thought it strictly within the province of a jury “to pronounce on all the circumstances, whether the defendant’s conduct was wanting in ordinary care, and the harm to the plaintiff such a result of it as might have been expected”(f) .

Contrasted cases of non-liability and liability: Cox v. Burbidge, Lee v. Riley. It will be seen that on the whole the disposition of the Courts has been to extend rather than to narrow the range of “natural and probable consequences.” A pair of cases at first sight pretty much alike in their facts, but in one of which the claim succeeded, while in the other it failed, will show where the line is drawn. If a horse escapes into a public road and kicks a person who is lawfully on the road, its owner is not liable unless he knew the horse to be vicious(g) . He was bound indeed to keep his horse from straying, but it is not an ordinary consequence of a horse being loose on a road that it should kick human beings without provocation. The rule is different however if a horse by reason of a defective gate strays not into the road but into an adjoining field where there are other horses, and kicks one of those horses. In that case the person whose duty it was to maintain the gate is liable to the owner of the injured horse(h) .

Metropolitan Rail. Co. v. Jackson. The leading case of Metropolitan Rail. Co. v. Jackson(i) is in truth of this class, though the problem arose and was considered, in form, upon the question whether there was any evidence of negligence. The plaintiff was a passenger in a carriage already over-full. As the train was stopping at a station, he stood up to resist yet other persons who had opened the door and tried to press in. While he was thus standing, and the door was open, the train moved on. He laid his hand on the door-lintel for support, and at the same moment a porter came up, turned off the intruders, and quickly shut the door in the usual manner. The plaintiff’s thumb was caught by the door and crushed. After much difference of opinion in the courts below, mainly due to a too literal following of certain previous authorities, the House of Lords unanimously held that, assuming the failure to prevent overcrowding to be negligence on the company’s part, the hurt suffered by the plaintiff was not nearly or certainly enough connected with it to give him a cause of action. It was an accident which might no less have happened if the carriage had not been overcrowded at all.

Non-liability for consequences of unusual state of things: Blyth v. Birmingham Waterworks Co. Unusual conditions brought about by severe frost have more than once been the occasion of accidents on which untenable claims for compensation have been founded, the Courts holding that the mishap was not such as the party charged with causing it by his negligence could reasonably be expected to provide against. In the memorable “Crimean winter” of 1854-5 a fire-plug attached to one of the mains of the Birmingham Waterworks Company was deranged by the frost, the expansion of superficial ice forcing out the plug, as it afterwards seemed, and the water from the main being dammed by incrusted ice and snow above. The escaping water found its way through the ground into the cellar of a private house, and the occupier sought to recover from the company for the damage. The Court held that the accident was manifestly an extraordinary one, and beyond any such foresight as could be reasonably required(k) . Here nothing was alleged as constituting a wrong on the company’s part beyond the mere fact that they did not take extraordinary precautions.

Sharp v. Powell. The later case of Sharp v. Powell(l) goes farther, as the story begins with an act on the defendant’s part which was a clear breach of the law. He caused his van to be washed in a public street, contrary to the Metropolitan Police Act. The water ran down a gutter, and would in fact(m) (but for a hard frost which had then set in for some time) have run harmlessly down a grating into the sewer, at a corner some twenty-five yards from where the van was washed. As it happened, the grating was frozen over, the water spread out and froze into a sheet of ice, and a led horse of the plaintiff’s slipped thereon and broke its knee. It did not appear that the defendant or his servants knew of the stoppage of the grating. The Court thought the damage was not “within the ordinary consequences”(n) of such an act as the defendant’s, not “one which the defendant could fairly be expected to anticipate as likely to ensue from his act”(o) : he “could not reasonably be expected to foresee that the water would accumulate and freeze at the spot where the accident happened”(p) .

Question, if the same rule holds for consequences of wilful wrong: Clark v. Chambers. Some doubt appears to be cast on the rule thus laid down—which, it is submitted, is the right one—by what was said a few years later in Clark v. Chambers(q) , though not by the decision itself. This case raises the question whether the liability of a wrong-doer may not extend even to remote and unlikely consequences where the original wrong is a wilful trespass, or consists in the unlawful or careless use of a dangerous instrument. The main facts were as follows:—

1. The defendant without authority set a barrier, partly armed with spikes (chevaux-de-frise), across a road subject to other persons’ rights of way. An opening was at most times left in the middle of the barrier, and was there at the time when the mischief happened.

2. The plaintiff went after dark along this road and through the opening, by the invitation of the occupier of one of the houses to which the right of using the road belonged, and in order to go to that house.

3. Some one, not the defendant or any one authorized by him, had removed one of the chevaux-de-frise barriers, and set it on end on the footpath. It was suggested, but not proved, that this was done by a person entitled to use the road, in exercise of his right to remove the unlawful obstruction.

4. Returning later in the evening from his friend’s house, the plaintiff, after safely passing through the central opening above mentioned, turned on to the footpath. He there came against the chevaux-de-frise thus displaced (which he could not see, the night being very dark), and one of the spikes put out his eye.

After a verdict for the plaintiff the case was reserved for further consideration, and the Court(r) held that the damage was nearly enough connected with the defendant’s first wrongful act—namely, obstructing the road with instruments dangerous to people lawfully using it—for the plaintiff to be entitled to judgment. It is not obvious why and how, if the consequence in Clark v. Chambers was natural and probable enough to justify a verdict for the plaintiff, that in Sharp v. Powell was too remote to be submitted to a jury at all. The Court did not dispute the correctness of the judgments in Sharp v. Powell “as applicable to the circumstances of the particular case;” but their final observations(s) certainly tend to the opinion that in a case of active wrong-doing the rule is different. Such an opinion, it is submitted, is against the general weight of authority, and against the principles underlying the authorities(t) . However, their conclusion may be supported, and may have been to some extent determined, by the special rule imposing the duty of what has been called “consummate caution” on persons dealing with dangerous instruments.

Consequences natural in kind though not in circumstance. Perhaps the real solution is that here, as in Hill v. New River Co.(tt) , the kind of harm which in fact happened might have been expected, though the precise manner in which it happened was determined by an extraneous accident. If in this case the spikes had not been disturbed, and the plaintiff had in the dark missed the free space left in the barrier, and run against the spiked part of it, the defendant’s liability could not have been disputed. As it was, the obstruction was not exactly where the defendant had put it, but still it was an obstruction to that road which had been wrongfully brought there by him. He had put it in the plaintiff’s way no less than Shepherd put his squib in the way of striking Scott; whereas in Sharp v. Powell the mischief was not of a kind which the defendant had any reason to foresee.

The turn taken by the discussion in Clark v. Chambers was, in this view, unnecessary, and it is to be regretted that a considered judgment was delivered in a form tending to unsettle an accepted rule without putting anything definite in its place. On the whole, I submit that, whether Clark v. Chambers can stand with it or not, both principle and the current of authority concur to maintain the law as declared in Sharp v. Powell.

Damages for “nervous or mental shock” whether too remote. Where a wrongful or negligent act of A., threatening Z. with immediate bodily hurt, but not causing such hurt, produces in Z. a sudden terror or “nervous shock” from which bodily illness afterwards ensues, is this damage too remote to enter into the measure of damages if A.’s act was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action? The Judicial Committee decided in 1888(u) that such consequences are too remote; but it is submitted that the decision is not satisfactory. A husband and wife were driving in a buggy across a level railway crossing, and, through the obvious and admitted negligence of the gatekeeper, the buggy was nearly but not quite run down by a train; the husband “got the buggy across the line, so that the train, which was going at a rapid speed, passed close to the back of it and did not touch it.” The wife then and there fainted, and it was proved to the satisfaction of the Court below “that she received a severe nervous shock from the fright, and that the illness from which she afterwards suffered was the consequence of the fright.” It may be conceded that the passion of fear, or any other emotion of the mind, however painful and distressing it be, and however reasonable the apprehension which causes it, cannot in itself be regarded as measurable temporal damage; and that the judgment appealed from, if and so far as it purported to allow any distinct damages for “mental injuries”(x) , was erroneous. But their Lordships seem to have treated this as obviously involving the further proposition that physical illness caused by reasonable fear is on the same footing. This does not follow. The true question would seem to be whether the fear in which the plaintiff was put by the defendant’s wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiff’s case(y) , to the physical effects complained of. Fear taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects. The opinion of the Judicial Committee, outside the colony of Victoria, is as extra-judicial as the contrary and (it is submitted) better opinion expressed in two places(z) by Sir James Stephen as to the possible commission of murder or manslaughter by the wilful or reckless infliction of “nervous shock,” or the later contrary decisions in Ireland and New York(a) . And if the reasoning of the Judicial Committee be correct, it becomes rather difficult to see on what principle assault without battery is an actionable wrong(a) .

[(a) ]In Gaius iii. 223, 224, the contrast between the ancient law of fixed penalties and the modern law of damages assessed by judicial authority is clearly shown. The student will remember that, as regards the stage of development attained, the law of Justinian, and often that of Gaius, is far more modern than the English law of the Year-Books. Perhaps the historical contrast holds only in Europe: see a note in L. Q. R. ix. 97, showing that among the Kachins on the Burmese frontier claims for unliquidated damages are not only known but freely assignable.

[(b) ]The developed Roman law had either attained or was on the point of attaining a like generality of application, “Denique aliis pluribus modis admitti iniuriam manifestum est”: I. iv. 4, 1.

[(c) ]Gully v. Smith (1883) 12 Q. B. D. 121, 53 L. J. M. C. 35.

[(d) ]Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex. Div. 441, 46 L. J. Ex. 775.

[(e) ]Gorris v. Scott (1874) L. R. 9 Ex. 125, 43 L. J. Ex. 92; Ward v. Hobbs (1878) 4 App. Ca. 13, 23, 48 L. J. Q. B. 281.

[(f) ]D. 50. 17, de div. reg. iuris antiqui, 132; cf. D. 9. 2, ad legem Aquiliam, 8. Both passages are from Gaius.

[(g) ]Hammack v. White (1862) 11 C. B. N. S. 588, 31 L. J. C. P. 129; Holmes v. Mather (1875) L. R. 10 Ex. 261, 44 L. J. Ex. 176.

[(h) ]For shortness’ sake I shall often use the word “act” alone as equivalent to “act or default.”

[(i) ]Maxims of the Law, Reg. 1. It is remarkable that not one of the examples adduced by Bacon belongs to the law of torts, or raises a question of the measure of damages. There could be no stronger illustration of the extremely modern character of the whole subject as now understood.

[(k) ]Hadley v. Baxendale (1854) 9 Ex. 341, 23 L. J. Ex. 179.

[(l) ]Whether it is practically worth while to sue on a contract must, indeed, often turn on the measure of damages. But this need not concern us here.

[(m) ]In criminal law there is some difficulty in the case of attempted personal offences. There is no doubt that if A. shoots and kills or wounds X., under the belief that the man he shoots at is Z., he is in no way excused by the mistake, and cannot be heard to say that he had no unlawful intention as to X.: R. v. Smith (1855) Dears. 559. But if he misses, it seems doubtful whether he can be said to have attempted to kill either X. or Z. Cf. R. v. Latimer (1886) 17 Q. B. D. 359, 55 L. J. M. C. 135. In Germany there is a whole literature of modern controversy on the subject. See Dr. R. Franz, “Vorstellung und Wille in der modernen Doluslehre,” Ztsch. für die gesamte Strafrechtswissenschaft, x. 169.

[(n) ]Scott v. Shepherd, 2 W. Bl. 892; and in 1 Sm. L. C. No doubt was entertained of Shepherd’s liability; the only question being in what form of action he was liable. The inference of wrongful intention is in this case about as obvious as it can be; it was, however, not necessary, squib-throwing, as Nares J. pointed out, having been declared a nuisance by statute.

[(o) ]Year-Book 17 Edw. IV. 1, translated in Blackburn on Sale, at p. 193 in 1st ed., 261 in 2nd ed. by Graham.

[(p) ]“Normal, or likely or probable of occurrence in the ordinary course of things, would perhaps be the better expression”: Grove J. in Smith v. Green, 1 C. P. D. at p. 96. But what is normal or likely to a specialist may not be normal or likely to a plain man’s knowledge and experience.

[(q) ]Thus Quain J. said (Sneesby v. L. & Y. Rail. Co., L. R. 9 Q. B. at p. 268): “In tort the defendant is liable for all the consequences of his illegal act, where they are not so remote as to have no direct connexion with the act, as by the lapse of time for instance.”

[(r) ]“The doctrine of causation,” said Fry L. J., “involves much difficulty in philosophy as in law”: Seton v. Lafone (1887) 19 Q. B. Div. at p. 74, 56 L. J. Q. B. 415.

[(s) ]4 Denio, 464. The decision seems to be generally accepted as good law.

[(t) ]Guille v. Swan (1822) 19 Johns. 381.

[(u) ]Per Spencer C.J. It appeared that the defendant (plaintiff in error) had called for help; but this was treated as immaterial. The recent Scottish case of Scott’s Trustees v. Moss (1889), 17 Ct. of Sess. C. 4th S. 32, is hardly so strong, for there a parachute descent was not only contemplated but advertised as a public entertainment.

[(v) ](1867) L. R. 3 Q. B. 25, 37 L. J. Q. B. 57.

[(x) ]Digest of the Criminal Law, Arts. 219, 220.

[(y) ]Alderson B. in Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781, 25 L. J. Ex. 212. This is not a complete definition, since a man is not liable for even wilful omission without some antecedent ground of duty. But of that hereafter.

[(z) ]Per Pollock C. B. (1850) 5 Ex. at p. 248.

[(a) ]9 B. & S. 303 (1868); cp. Harris v. Mobbs (Denman J. 1878) 3 Ex. D. 268, which, perhaps, goes a step farther.

[(b) ]L. R. 9 Ex. 157, 43 L. J. Ex. 105 (1874). Cp. Hayes v. Michigan Central Rail. Co. (1883) 111 U. S. 228.

[(c) ]Amphlett B. at p. 162.

[(d) ]L. R. 5 Ex. 204, 39 L. J. Ex. 163 (1870); in Ex. Ch. L. R. 7 Ex. 247 (1872). This comes near the case of letting loose a dangerous animal; a drifting vessel is in itself a dangerous thing. In The George and Richard, L. R. 3 A. & E. 466, a brig by negligent navigation ran into a bark, and disabled her; the bark was driven on shore; held that the owners of the brig were liable for injury ensuing from the wreck of the bark to persons on board her.

[(e) ]1 Q. B. 29, 10 L. J. Q. B. 73 (1841); cp. Clark v. Chambers, 3 Q. B. D. at p. 331.

[(f) ]This case was relied on in Massachusetts in Powell v. Deveney (1849) 3 Cush. 300, where the defendant’s truck had, contrary to local regulations, been left out in the street for the night, the shafts being shored up and projecting into the road; a second truck was similarly placed on the opposite side of the road: the driver of a third truck, endeavouring with due caution, as it was found, to drive past through the narrowed fairway thus left, struck the shafts of the defendant’s truck, which whirled round and struck and injured the plaintiff, who was on the sidewalk. Held, the defendant was liable. If the case had been that the shafts of the truck remained on the sidewalk, and the plaintiff afterwards stumbled on them in the dark, it would be an almost exact parallel to Clark v. Chambers (3 Q. B. D. 327, 47 L. J. Q. B. 427; see below).

[(g) ]Cox v. Burbidge (1863) 13 C. B. N. S. 430, 32 L. J. C. P. 89.

[(h) ]Lee v. Riley (1865) 18 C. B. N. S. 722, 34 L. J. C. P. 212. Both decisions were unanimous, and two judges (Erle C. J. and Keating J.) took partin both. Cp. Ellis v. Loftus Iron Co., L. R. 10 C. P. 10, 44 L. J. C. P. 24.

[(i) ]3 App. Ca. 193, 47 L. J. C. P. 303 (1877). Cp. Cobb v. G. W. R. Co. ’93, 1 Q. B. 459, 62 L. J. Q. B. 335, 4 R. 283.

[(k) ]Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781, 25 L. J. Ex. 212. The question was not really of remoteness of damage, but whether there was any evidence of negligence at all; nevertheless the case is instructive for comparison with the others here cited. Cp. Mayne on Damages, Preface to the first edition.

[(l) ]L. R. 7 C. P. 253, 41 L. J. C. P. 95 (1872).

[(m) ]So the Court found, having power to draw inferences of fact.

[(n) ]Grove J.

[(o) ]Keating J.

[(p) ]Bovill C. J.

[(q) ]3 Q. B. D. 327, 47 L. J. Q. B. 427 (1878).

[(r) ]Cockburn C. J. and Manisty J. The point chiefly argued for the defendant seems to have been that the intervention of a third person’s act prevented him from being liable: a position which is clearly untenable (see Scott v. Shepherd); but the judgment is of wider scope.

[(s) ]3 Q. B. D. at p. 338.

[(t) ]Compare the cases on slander collected in the notes to Vicars v. Wilcocks, 2 Sm. L. C. Compare also, as to consequential liability for disregard of statutory provisions, Gorris v. Scott (1874) L. R. 9 Ex. 125, 43 L. J. Ex. 92.

[(tt) ]P. 37, above.

[(u) ]Victorian Railways Commissioners v. Coultas, 13 App. Ca. 222, 57 L. J. P. C. 69.

[(x) ]It is by no means clear that such was the intention or effect. See the report, 12 V. L. R. 895. The physical injuries were substantial enough, for they included a miscarriage (ibid.). Whether that was really due to the fright was eminently a question of fact, and this was not disputed or discussed.

[(y) ]This must be so unless we go back to the old Germanic method of a fixed scale of compensation. So, as regards the measure of damages when liability is not denied, the defendant has to take his chance of the person disabled being a workman, or a tradesman in a small way, or a physician with a large practice.

[(z) ]Dig. Cr. Law, note to art. 221; Hist. Cr. Law, iii. 5.

[(a) ]Cp. Mr. Beven’s criticism of this case, Principles of the Law of Negligence, 66—71. As he justly points out, it has never been questioned that an action may lie for damage done by an animal which has been frightened by the defendant’s negligent act: Manchester South Jn. R. Co. v. Fullarton (1863) 14 C. B. N. S. 54; Simkin v. L. & N. W. R. Co. (1888) 21 Q. B. Div. 453; 59 L. T. 797; Brown v. Eastern and Midlands R. Co. (1889) 22 Q. B. Div. 391; 58 L. J. Q. B. 212. The Exchequer Division in Ireland has refused to follow this doctrine of the Judicial Committee: Bell v. G. N. R. Co. (1890) 26 L. R. Ir. 428. So has the Supreme Court of New York in an almost identical case: Mitchell v. Rochester R. Co. (1893), see (New York) Univ. Law Rev. i. 10. And see Ames, Sel. Ca. on Torts, 15, 16.