66

In Pastene v. Adams, the defendants had piled timbers so that their ends projected into a gangway. A teamster drove negligently and caught a wheel on the projecting end of a timber. The pile fell on the plaintiff's leg. The defendants were held liable. The courts that hold the defendant in such situations virtually treat his tort as coming into existence at the moment when the timbers are knocked down and thus regard it as concurrent. Of course the teamster would also be liable.

(d) When both the third person and the defendant are at the same moment of time actively negligent and the two acts combine to harm the plaintiff, the act of the third person is not an intervening cause. Thus, one injured in a collision occasioned by the careless driving of two different vehicles can recover from either driver and it is immaterial which one is most in fault.67

27. Intentional acts of third person. (a) In Vicars v. Wilcocks,68 the defendant had said that the plaintiff had cut certain "flocking-cord" of his employer. The plaintiff sued in slander, alleging that he had been discharged in consequence. The court assumed that the action would lie only on proof of special damage, and Lord Ellenborough said that such damage must be "the legal and natural consequence of the words spoken." He said it was not such here, as the act of the employer was itself a

66 49 Cal. 87. See also Lane v. Atl. Works, 111 Mass. 136, where the court laid stress on the thought that the danger should have been apprehended. 67 Matthew v. London S. T. Co., 60 L. T. R. (N. S.) 47 (Eng.). Compare § 70.

es 8 East 1 (Eng.), LEADING ILLUSTRATIVE Cases.

wrong. This would mean that the intervening act of a third person done tortiously or in violation of a legal duty to the plaintiff is an intervening cause. As noted in the preceding section, such a rule is not uniformly applied where the intervening act was only negligent, and in Lynch v. Knight," the House of Lords thought it was not true in all situations even though this act was intentional. The rule of Vicars v. Wilcocks has had a wide influence, but the tendency has been to restrict its application even in cases of defamation." 70

(b) The rule is properly applied when the defendant's act has produced only a passive condition of peril, and the independent purposeful misconduct of a third person could not have been and was not in fact anticipated by the defendant. Thus, in Alexander v. New Castle," the city had dug a pit along by a sidewalk and had not guarded it. The plaintiff, a constable, was taking an offender to jail, who, when they came opposite the excavation, seized the plaintiff, threw him in, and escaped. The city was held not liable.

If the misconduct of the defendant has left a potentially active state of peril, there is more doubt. In Mars v. D. & H. C. Co.,72 the defendant left on a sidetrack, unguarded, an engine with its fires banked. Marauders maliciously set it in motion and it collided with a train on the main track, on which train

co 9 H. L. C. 577 (Eng.).

70 Odgers on Slander and Libel (1st Am. ed.), *325. But one is ordinarily not liable for the repetition by another of a slander. Hastings v. Stetson, 126 Mass. 329.

71 115 Ind. 51, 17 N. E. 200.

72 54 Hun 625 (N. Y.).

the plaintiff was a passenger. The court laid stress on the view that the act of the marauders could not have been foreseen and held the defendant not liable.

(c) When the purposeful misconduct of others ought to have been foreseen or was in fact foreseen, the rule of Vicars v. Wilcocks as literally laid down would apply. Whether or not it ought to be applied, is discussed in §§ 29, 30.

28. Implied negative rule.-The affirmative rule of §13 implies a corresponding negative statement, namely, that "a defendant is not liable for those results which are not natural and proximate; i. e., where, after the defendant's act, there has been some intervening factor to which the harmful result is more directly traceable. This proposition is generally true. Still, to some degree, the exceptions to the negative "natural and probable consequence” rule73 have an influence here as well.

The chief difficulties are in those situations where the harmful result was not proximate (i. e., where there was what normally amounts to an intervening cause), but where this intervening factor (1) ought, nevertheless, under the circumstances of the case, to have been foreseen by the defendant, or (2) where it was in fact actually foreseen by him and desired.

29. Same subject-Foreseen consequential results. (First.) If the thing that ought to have been here foreseen was the action of anything else than an intentional human wrong-doer, the defendant ought to be liable." Thus, if one negligently sets

73 §§ 7 to 10.

74 This would seem to be a clear case for the application of the principle in § 5.

out a fire in the face of an approaching cyclone, he would be responsible for the spread of the fire to a much greater distance than ordinarily. If the thing that ought to have been foreseen, but was not, was the act of an intentional human wrong-doer, it is not quite so clear that the defendant should be liable. In Guille v. Swan,75 the defendant went up in a balloon and came down in the plaintiff's garden. The crowd, attracted by his peril, rushed in and trampled down the vegetables. The defendant was held liable for the destruction. In International & G. N. R. Co. v. Johnson,76 the defendant made no provision to guard a switch. Lawless persons, such as were likely to be in the neighborhood, tampered with it and a train was derailed. The company was held liable. This seems an extreme case, as it was not shown that the defendant had any special reason to then anticipate any depredations on its property. It may turn in part on the rules peculiar to the law of carriers.

30. Same subject-Foreseen wilful acts.-(Second.) If the intervening factor, even though it be the wilful wrong of a responsible human being, was actually foreseen and hence desired by the defendant, he ought to be held liable. That is, the "probable consequence" rule ought to override the "natural and proximate consequence" rule, and the arbitrary limitation of liability in Vicars v. Wilcocks" ought to be discarded. Thus, if one knew that in a temporarily inflamed state of public feel

75 19 Johns. 381 (N. Y.), LEADING ILLUSTRAtive Cases.

76 23 Tex. Civ. App. 160, 55 S. W. 772.

77 § 27.

78

ing a charge of crime would lead to acts of violence against the suspected person and he nevertheless made the charge, which he knew to be unfounded, he should be liable for the ensuing violence. Lumley v. Gye, a leading authority in another field of the law, seems to illustrate this principle. The defendant induced a singer to break her contract with the plaintiff, whereby the plaintiff lost profits. The defendant was held liable although the intervening act was itself a breach of duty. Outside of cases of this type, wherein the question has not been discussed as one of proximate cause, the actual decisions are few. That the defendant should be liable, is stated in numerous dicta" and is asserted with confidence by eminent legal writers.8°

31. Who decides questions of legal cause.-The American courts have shown some disposition to dispose of difficult questions of legal cause by leaving them to the jury, under general instructions as to what constitutes legal cause, and letting it apply the rules to the facts.81 This is not the English practice.82 It is not done even in America when the question is raised on the pleadings nor where the facts are undisputed and the court thinks that reasonable men could not honestly differ in their conclusions.84

78 2 E. & B. 216 (Eng.).

83

79 See Georgia v. Kepford, 45 Iowa 48. (A case of defamation.)

so See articles of Prof. Jeremiah Smith in 25 Harvard Law Review, pp. 103, 223 and 303.

81 Gilman v. Noyes, 57 N. H. 627.

82 Hobbs v. L. & S. W. Ry. Co., L. R. 10 Q. B. 111, at p. 122 (Eng.).

83 McDonald v. Snelling, 14 Allen 290 (Mass.).

84 Watters v. Waterloo, 126 Iowa 199, 101 N. W. 871.