the firecracker would be liable, as the other's act was not an intervening cause. If the other had time for deliberation and acted deliberately, the result would probably be different. In Vandenburgh v. Truax,45 the defendant purposely frightened a negro boy, who ran for safety and accidentally knocked a spigot from a barrel of molasses. The defendant was held liable for the loss of the molasses.

47

20. Intervening volitional acts of plaintiff-Nonculpable. If the plaintiff is in a position of peril through the defendant's act, he may act even with some degree of deliberation without becoming an intervening cause, provided he acts with reasonable circumspection.46 In Jones v. Boyce, the plaintiff jumped from a stage coach to escape from an impending collision. The court instructed the jury that if he acted rashly and out of an unreasonable apprehension of danger, he could not recover; but otherwise, if he acted as a reasonable and prudent man. The jury found for the plaintiff. In McKenna v. Baessler,48 the plaintiff set a back-fire to protect his property from a fire previously started by the defendant. It got beyond his control, without negligence, and destroyed his property. It was held that his petition stated a cause of action.

Particularly is this true when it was the plaintiff's duty to avert the peril. Thus, in Knapp v. S. C. & P. Ry., the plaintiff, an engineer on the defendant

49

44 Scott v. Shepherd, 2 Wm. Bl. 892 (Eng.).

45 4 Denio 464 (N. Y.).

46 Brown v. C. M. & St. P. Ry., 54 Wis. 342, 11 N. W. 356, 911.

47 1 Starkie 493 (Eng.).

48 86 Iowa 197, 53 N. W. 103.

49 65 Iowa 91, 21 N. W. 198.

railroad, to avert an impending wreck, with due care reversed his engine. The sudden checking of speed threw such a strain on his arm that it was broken. He was allowed to recover. Likewise, when the life of another is at stake through the defendant's act, the plaintiff, at least when not acting rashly and precipitately, who undertakes to rescue the other, can recover for injuries which he thus sustains.50 Some courts even apply this doctrine when the plaintiff sustained his injury in saving the property of another from immediate destruction, although he was under no duty to do so.51

21. Same subject-Culpable acts.-If the plaintiff's act in these cases was not that of a reasonably prudent man, he would be barred by the doctrine of contributory negligence.52 If the force set in motion by the defendant has come to rest and there is no situation of peril, the voluntary acts of plaintiff thereafter to remedy the situation are not due to the defendant's wrong, but to his own choice, and he cannot recover.58 His act is an intervening cause.

Such a situation arose in Scheffer v. The Railroad Co.54 Scheffer was struck on the head on December 7, 1874, became in consequence disordered in mind and a nervous invalid, and killed himself August 8, 1875. The court held as a matter of law that his act of self-destruction was an intervening cause. If this was a sane, conscious act, the result is no doubt cor

50 Eckert v. L. I. R. R. Co., 43 N. Y. 502; Gibney v. State, 137 N. Y. 1. 51 Liming v. I. C. R. R., 81 Iowa 246, 47 N. W. 66. See also § 77. 52 See Chap. II.

53 Schoultz v. Eckardt Mfg. Co., 112 La. 568.

rect; but if it was an insane, instinctive act, due to a gradual process of physical degeneration occasioned by the blow, the opposite result might well be reached, under the rule in § 7.

55

22. Plaintiff's failure to act.-If the plaintiff has failed to act as a reasonably prudent man under the same circumstances would have acted, the plaintiff cannot recover if his action would have averted the harm. If this failure to act occurs prior to the consummation of the defendant's negligent tort, it is said that the plaintiff is barred by contributory negligence.50

If it occurs after the commission of the defendant's either negligent or wilful tort, the plaintiff cannot recover for those damages which he might have prevented by the exercise of due care. This is often called the doctrine of avoidable consequences. Thus, in Loker v. Damon,57 the plaintiff made no effort to replace his fencing which the defendant had taken down, and cattle subsequently got in and ate the grass. It was held that he could recover only for the cost of replacing the fencing.

23. Third person's failure to act. In the case of Wiley v. W. J. Ry. Co.,58 sparks from the engine of the defendant company started a fire. The tenant on this plaintiff's property saw the fire, but failed to use due care to extinguish it. It then spread to the plaintiff's farm, a mile distant. It

55 Malone v. Cayzer, 45 Scottish L. R. 351.

56 See Chap. III. This doctrine has no application if the defendant's tort was intentional.

57 17 Pick. 284 (Mass.). See also subject, DAMAGES.

58 44 N. J. L. 247.

was held that the mere failure to act, being that of a third person, could not be regarded as an intervening cause.

24. Non-culpable acts of third person. — Although the positive act of a third person was so much a factor in the harmful result that without it the result would not have occurred, yet it may not be an intervening cause, particularly if it was not blameworthy.

Thus, in Griggs v. Fleckenstein,59 a crowd hallooed and waved at the defendant's runaway horse in an effort to stop him, but only succeeded in turning him at right angles. He ran down a side street and injured the plaintiff, who was allowed to recover from the defendant." 60 The members of the crowd probably were not liable at all. So, too, where a defendant fired on savages that were coming to barter at the plaintiff's vessel and so frightened them away, he was held liable for the loss of profits on their trade.61

25. Negligent acts of third person.-(a) If the negligent act of a third person came before the defendant's in point of time and has spent itself as an active force, but produces a passive condition of peril, the defendant cannot assert that this was an intervening cause. It is at most only a coöperating cause, and the defendant is liable for the harm produced by the joint action of this with his own act. Thus, in Hill v. N. R. Co., contractors who had dug

59 14 Minn. 81.

62

60 This case also illustrates the matter in § 7. 61 Tarleton v. McGawley, Peake 270 (Eng.). 62 9 B. & S. 303 (Eng.).

an excavation left it unfenced and unguarded. The defendant's negligence frightened the horses which the plaintiff was driving. They swerved to one side and fell into the excavation. The defendant was held liable.

(b) If the contractors were sued instead, we would have a case where a defendant's negligence came first and left a passive condition of peril. It might be argued that the negligence of the third person in frightening the horses was an intervening cause, but most courts would hold that the negligence of the contractors was concurring and would hold them liable also. The courts have reached different conclusions on this problem in Carterville v. Cook and in Mahogany v. Ward.64

26. Same subject.-(c) If the defendant's negligence came first in point of time and left a condition of peril not wholly passive, but "potentially active," we have a somewhat clearer case for holding him also liable. One who places or piles articles in positions of unstable equilibrium, so that if they are struck, the force of gravity will cause them to fall, may be said to have created a condition that is "potentially active."

There is a difference of opinion as to whether or not the negligent keeping of explosives, steam or electric power, or inflammable materials might fall under the same head.65

65 International & G. N. R. Co. v. Johnson, 23 Tex. Civ. App. 160, 55 8. W. 772. But the decisions in Mars v. D. H. C. Co., 54 Hun 625 (N. Y.), and Stone v. B. & A. Ry., 171 Mass. 536, 51 N. E. 1, seem to point toward an opposite conclusion.