Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

LAW OF TORTS

PART III

LEGAL CAUSE AND NEGLIGENCE

BY

BARRY GILBERT, A.B., LL.B.*

CHAPTER I.

LEGAL CAUSE.

1. Causation.-When we try to ascertain what was the cause of any given event, we must look at all the antecedent happenings which combined to produce that event. When we look to see what in turn was the cause of each of these antecedent happenings, the inquiry becomes a very broad one. The farther back we try to trace the influences that in turn produced each set of causes, the greater and greater become the number of things which have contributed in some degree to the occurrence of the event in question.

In a certain sense, every factor in the chain of circumstances leading up to a given event is a cause of that event, but the most of such causes have only

* Professor of Law, State University of Iowa; former Professor of Law, University of Illinois. Author: "Iowa Probate Law." Co-editor: "Mechem and Gilbert's Cases on Damages.' Contributor to legal journals and encyclopedias.

[ocr errors]
[blocks in formation]

a remote bearing on the final result. If we reverse the process and start with an act, and seek to trace to an end all the results of that act, we likewise find that shortly so many other factors join with it that it soon becomes only one of a vast number of causes, and that other influences play a larger part than it in producing some results in which it has a part.

Thus, while the logician may say that the cause of an event is "the sum of all its antecedents, 991 or that "an act is the cause of all events to which its influence can be traced," the law, in fixing responsibility, must adopt some more limited and more definite standard. It must recognize somewhat the relative influence of those causes which contribute to a given result. Otherwise, there would be no end of the consequences for which a wrong-doer would be liable.

2. Legal cause. The law, therefore, holds a wrong-doer liable only for those results wherein his act was the "legal cause"; that is, a predominant cause according to certain rather indefinite tests which have been worked out. It is often said that he is not liable for "remote consequences. 99 How can we determine what consequences are not remote? Several rules have been suggested from time to time.

3. "But for" rule.-In Gilman v. Noyes, the plaintiff's sheep were eaten by bears. The lower court instructed the jury that "if the plaintiff's sheep escaped in consequence of the bars being left down by the defendant, and would not have been killed but for the act of the defendant," he was liable. Of

1 John Stuart Mill, Logic, chap. 5.

2 57 N. H. 627, LEADING ILLUSTRATIVE CASES.

3

course, if it had appeared that the defendant's act had had nothing whatever to do with the loss of the sheep, he would not have been liable, but it was not enough to show that it had had some connection with and was a necessary factor in the loss of the sheep, for the same thing was true of the myriad of other things that contributed to produce the result. The upper court, therefore, reversed the case. The "but for" rule fails to discriminate as to the importance of the various factors coöperating as causes, and is therefore generally discarded as unsound.

4. Last human wrong-doer rule.-In Clifford v. Atlantic Cotton Mills Mr. Justice Holmes said "the general tendency has been to look no further back than the last wrong-doer." This may in general be a true statement as a mere rule of thumb, but it can hardly be used as a discriminating test to decide liability, for sometimes the act of the last human wrongdoer is so remote as entirely to have spent its force" and at other times a wrong-doer prior to the last in chronological order may be held liable along with the last, if he should have anticipated the subsequent wrongful act, or if his act was a concurring cause.

5. Probable consequence rule.-The rule most frequently suggested is thus stated: "The wrongdoer is liable for all the natural and probable consequences of his act." The word "natural" apparently means "without unusual departure from the ordinary course of nature." The courts do not 3 Ring v. Cohoes, 77 N. Y. 83.

4 146 Mass. 47, 15 N. E. 84.

5 Compare § 17.

Compare § 25.

seem to wholly agree on the meaning of the word "probable." Some seem to view it as meaning that the result must have been so far foreseeable that the chances were in favor of its happening, while others apparently require only that the result was one not unlikely to occur.8

So, when the defendant has started a negligent fire he is liable for all the destruction which he ought to have foreseen at that time in the light of the attending circumstances, which include the strength and direction of the wind, the combustible character of the surrounding structures and their distance from the fire." So, one must be deemed to have anticipated that animals and human beings will act on a given occasion as such animals and persons normally act under such circumstances."

10

This rule is often called the "foresight" rule, because it takes as a standard what a reasonable man standing in the position of the defendant at the time. he committed the tort might or ought to have foreseen.11

6. Implied negative rule.-The foregoing affirmative rule that whenever a man so situated did foresee or ought to have foreseen the result, he is liable for it, implies as a corollary the negative proposition

7 Wood v. Pennsylvania Ry., 177 Pa. 306, 35 Atl. 699.

8 1 Shearman & Redfield, Negligence (5th ed.), § 28.

9 M. & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, LEADING ILLUSTRATIVE CASES. In New York, a peculiar and arbitrary rule exists for liability for fire. The negligent wrong-doer is there held liable only for the destruction of the first building to which the fire spreads. Ryan v. N. Y. C. R. R., N. Y. 210.

35

10 See §§ 18 and 19.

11 The test tends to confuse regligence and causation. See Christianson v. Railway, 67 Minn. 94, 69 N. W. 640.

that "the wrong-doer is not liable for those results which were not reasonably foreseeable by him.'

[ocr errors]

12

Thus, in Marvin v. C. M. & St. P. Ry. Co.12 it appeared that after the defendant had negligently started a fire, a violent whirlwind suddenly arose and carried it to a distance far beyond what could have been foreseen when the fire was started. The defendant was not held liable for the distant structures thus burned.

But, while the affirmative proposition is followed with general uniformity,13 the negative proposition, while generally true, has a number of exceptions, and indeed is often discarded for the "proximate cause" rule.14

7. First exception.—If the defendant could have foreseen that harm of some kind would follow his act, it is not necessary to show that he could have foreseen the harmful result in the precise form in which it occurred.15

This principle is applied particularly in personal injury cases. Thus, in Vosburg v. Putney,16 it appeared that the defendant, a school boy, playfully kicked his seatmate on the shin. The touch was slight, but owing to the fact that disease germs were present in the boy's leg, serious consequences followed and the leg had to be amputated. The defendant was held liable for all the consequences. The plaintiff in Mann Boudoir Car Co. v. Dupre1 was

12 79 Wis. 140, 47 N. W. 1123.

13 The most material variation from it is discussed in §§ 27 to 30.

14 See §§ 11 to 13.

15 A leading case is Hill v. Winsor, 118 Mass. 251.

16 78 Wis. 84, 47 N. W. 99; 80 Wis. 523, 50 N. W. 403.

17 54 Fed. 656.

« ΠροηγούμενηΣυνέχεια »