he immediately died. The same ruling has been made in our own. country, on an indictment under similar circumstances for homicide.2 But the causal connection is not broken when, after the injury has been inflicted, an event occurs which would have brought about the same injury, if it had not already occurred: neque enim ex post facto decrescit obligatio. Thus, in the case of two woundings, above mentioned, the person inflicting the first wound would be liable for such wound, because that was inflicted before the attack of the second assailant; though not for the death, because that occurred after the second assailant inflicted his wound. So a person who injures another's property cannot defend himself in a suit for the injury, on the ground that immediately after the injury the property was destroyed in a general conflagration.* § 136. Anglo-American law. With us, it is true, the principle, in the terms in which it is here expressed, has not received the prominent recognition assigned to it in the Roman law; though not unfrequently has it been accepted almost in the language in which it has been just stated.5 1 L. 11. § 3; L. 15. § 1; L. 52. pr. D. ad L. Aquil. 9. 2; L. 4. de imp. 25. 1. R. 35 N. J. 17, the question was discussed with an ability and judiciousness which require special notice. In this case it appeared that the 2 Wh. Cr. L. 7th ed. § 941. See passages to this point cited by Newark and New York Railroad Baron, § 243. 4 L. 7. § 4. i. f. quod vi. D. 43. 24; L. 37. D. mand.-17. 1; and other passages cited by Baron, § 243. 5 See Crain v. Petrie, 6 Hill, N. Y. 522; Stevens v. Hartwell, 11 Metc. 542; Saxton v. Bacon, 31 Vt. 540; Bk. of Ireland v. Evans, 5 H. of L. Cas. 389; Mangan v. Atterton, Law Rep. 1 Exch. 239; Ashley v. Harrison, 1 Esp. 48; Fitzsimmons v. Inglis, 5 Taunt. 534; Hoey v. Felton, 11 C. B. N. S. 142; Walker v. Goe, 4 H. & N. 350; Toomey v. R. R. 3 C. B. N. S. 145; Welfare v. Brighton R. R. Co. 4 Q. B. 693; Pensac. & G. R. R. v. Nash, 12 Florida, 497; Shepherd v. Chelsea, 4 Allen, 113; Richards v. Enfield, 13 Gray, 344. And see particularly cases cited infra, § 439 et seq., 934. In Cuff v. Newark & N. Y. R. Company contracted with F. & Co. for the graduation of their road-bed. With the consent of the company, F. & Co. sub-contracted rock excavation with one S. Before the subcontract was made, it was understood by the contractors and by the officers of the company that the rock would be removed by S., by blasting with nitro-glycerine; a magazine for storing the nitro-glycerine was located on the company's land, under the direction of their engineer. By the contract, the contractors were forbidden to sublet without the company's consent, and were required to discharge incompetent and disorderly workmen, when required so to do by the company's engineer. S., without the knowledge of the company, stored in the magazine certain cans of glycerine § 137. For several reasons we must maintain that in our own jurisprudence, as well as in that of Rome, causal connection is which belonged to the United States Blasting Company, and which he kept there for sale on the orders of the Blasting Company. An order for glycerine being sent to S. by the Blasting Company, his foreman directed B., one of his employees, to fill the order. B., in doing so, removed one of the Blasting Company's cans from the magazine a distance of one hundred and fifty yards, but not off the company's lands, and there, by his negligence, an explosion occurred, by which the deceased was killed. B. was employed by S. specially to take charge of the nitro-glycerine in the magazine, and was an incompetent person for that business. In an action against the railroad company and F. & Co., the contractors, by the administratrix of the deceased, to recover damages for his death, it was held by the supreme court: That the stipulations in the contract between the railroad company and the contractors, as to sub-contracting, and the removal of incompetent employees, did not create the relation of master and servant between the railroad company, or F. & Co., and the servants of the subcontractor; nor raise a duty for the non-performance of which an action could be maintained by third persons against the railroad company, or F. & Co., for injuries resulting from the negligence of an employee of the subcontractor. It was further held: That the permission of the company that S. might use their lands for a magazine in which to store oil necessary for the operations of blasting on the work, did not authorize him to use them for the purpose of engaging in a traffic in oil which belonged to others. And it was finally ruled: That the company were not answerable for in juries to third persons, which happened through the negligence of a servant of S. in the management of nitro-glycerine, which belonged to another company engaged in the manufacture of that article, and which had been clandestinely stored in the magazine by S., and was kept by him for sale on the orders of its owners, without the knowledge of the company. The following is extracted from the opinion of Depue, J.: "In other cases the intervention of the independent act of a third person between the wrong complained of and the injury sustained, which was the immediate cause of the injury, is made a test of that remoteness of damage which forbids its recovery. Ashley v. Harrison, 1 Esp. 48; Mylne v. Smith, 2 Dow's Parl. Rep. 390; Fitzsimmons v. Inglis, 5 Taunt. 534; Hoey v. Felton, 11 C. B. N. S. 142; Daniels v. Potter, 4 C. & P. 262; Haddan v. Lott, 15 C. B. 411; Walker v. Goe, 4 H. & N. 350; Parkins v. Scott, 1 H. & C. 152; Crain v. Petrie, 6 Hill, 522; Stevens v. Hartwell, 11 Met. 542; Toomey v. Railway Co. 3 C. B. N. S. 145; Williams v. Jones, 3 H. & C. 256; Mangan v. Atterton, Law Rep. 1 Exch. 239; Bank of Ireland v. Evans, 5 H. of L. Cases 389, 397. "Tested by the principle above stated, it is obvious that the injury received by the deceased, from which death resulted, is too far removed from the act of the company to impose a liability for it upon them. It did not result naturally or proximately from the nuisance they permitted on their lands, but was caused directly by the unauthorized and independent act of a third person intervening between broken by the interposition of independent negligence. These reasons are as follows: the injury. the nuisance they consented to and and their illegal act there was no such connection that the latter can be said to have been the cause of the former. "Shaffner had clandestinely applied the magazine to an use for which he had not the permission of the company, and engaged in a business which was not connected with his contract. Permission to use their lands for the limited purpose of storing materials for the execution of the work, did not authorize him to use them for the purpose of engaging in a dangerous traffic, in the prosecution of which the injury resulted. It cannot be insisted, therefore, that the liability of the defendants flows from their consent to the use of their lands for the business in which Burns was employed when the accident happened. The nuisance relied on to fix the defendants, is the storage of nitro-glycerine in the magazine, by their consent. The injury was not caused by an explosion in the magazine. Burns had removed the can from the magazine a distance of one hundred and fifty yards. If he had taken it on the work, to use it in blasting, and, there, persons had been injured by his negligence, the company I could not be held for the injuries, notwithstanding their consent to the use and storage of nitro-glycerine on their premises for the prosecution of the work, unless its use in blasting was a nuisance. The disconnection of his act from the nuisance of the storage of the oil, to which the company had consented, is the more apparent when it is considered that the oil, in the management of which the explosion occurred, was kept in the magazine without the knowledge of the company, and that the disaster happened in a business which Shaffner was not authorized to engage in on the company's land. Between his act "A. places a log in the highway, which B. casts into an adjoining close or puts an obstruction upon the sidewalk, which passers-by throw into the roadway of the street, and a traveller is injured by coming in contact with it. A. cannot be held for the trespass in the one case, nor for the injury in the other. Or, to take an illustration more nearly connected with the facts of the case, suppose Burns, by command of Shaffner, had carried the can to Jersey City, and there, by his negligence, it had exploded and injury had resulted, could an action be maintained against the company for such injuries, based upon an allegation of liability, arising from a nuisance which consisted in the storing of the explosive on their lands at Bergen? If not, it is manifest that the action in this case cannot be supported. That the injury happened on their lands can make no difference, if the business in the prosecution of which it resulted was transacted there by Shaffner, without the authority of the company. If the case had shown that they had consented to the use of their land for the traffic in which Shaffner had engaged, they might have been held for any injuries that resulted immediately in connection with the transaction of that business. No such case was made at the trial. The injury was not caused by the nuisance which had the approbation and consent of the company. Their consent was to the erection of a magazine to be used for the limited purpose of storing materials for the necessary operations of their works, § 138. To attach to an antecedent negligence the consequences arising from a subsequent negligence is inconsistent with the legal doctrine of causation. It has already been seen that there are two views of causation, so far as concerns liability for negligence. The first view is that a person is liable for all the consequences which flow in ordinary natural sequence from his negligence; the second that he is liable for all the consequences that could be foreseen as likely to occur. Can we regard the independent action of intelligent strangers as something that is in conformity with ordinary natural law, or as something that can be foreseen or preascertained? Of course, as a matter of theory, this opens interesting metaphysical and psychological questions which it would be inappropriate here to discuss. But as a matter of practice, can there be any question that, whatever may be the case in reference to an Omniscient eye, the actions of other persons, so far as we are concerned, viewing them as individuals, are not the subjects either of accurate precalculation or of foreknowledge? Is this not eminently so with regard to the negligences of others? We may to some extent assume that a malicious man may, under certain circumstances, do malicious things. But while we know that the best business men are sometimes negligent, it is impossible for us to come in advance to any conclusion as to the points to which such negligence will apply. To require us to act in such a way that no negligences on our part may be the conditions of negligences on the part of strangers, would be to require us to cease to be. If we do nothing, we negligently omit to do something that we ought to do. If we do something, owing to the imperfection of all things human, there will be some taint, no matter how slight, of imperfection in the thing we do. Yet, whether in doing or omitting, we touch more or less closely multitudes of persons each with a free will of his own, each with idiosyncrasies with which we have no acquaintance, each of whom may by some negligence cross in the handling and management of which Burns would have been continually under the observation of others engaged on the works, who would have detected any unfitness for his business arising from intoxication. At most, consent to the erection of the magazine for that purpose can only be said to have afforded an opportunity for the unauthorized act of Shaffner in appropriating it to another use, and the negligent act of Burns, who, in law, is a stranger to the defendants, and for whose acts Shaffner alone is responsible.” our path, and make action on our part which is innocuous in itself, injurious. Reserving for another point the consideration of the consequences resulting from this indefinite extension of vicarious liability, we may now ask whether, on elementary principles, the action of an independent free agent, taking hold unasked of an impulse started by us, and giving it a new course productive of injury to others, does not make him the juridical starting-point of the force so applied by him, so far as concerns the persons so injured? For the spontaneous action of an independent will is neither the subject of regular natural sequence, nor of accurate precalculation by us; and if not, it cannot be said to have been caused by us. In other words, so far as concerns my fellow-beings, their acts cannot be said to have been caused by me, unless they are imbecile, or act under compulsion, or under circumstances produced by me which give them no opportunity for volition. This distinction is brought out as fundamental by De Grey, C. J., in a remarkable case which has been already fully cited.1 That case, it will be recollected, was that of a squib, which, when tossed by the defendant on a table in a market-place, was thrown by the person guarding this table at B., and by B. at C., who was struck on the eye and injured by the exploding of the squib. Did the intermediate parties act merely mechanically in sudden convulsive action, to avoid the squib exploding on themselves, or did they act either mischievously or inadvertently, having opportunity to consider the risk, but not using such opportunity? "It has been urged," says this learned chief justice, "that the intervention of a free agent will make a difference; but I do not consider Willis and Ryal (the intermediate parties) as free agents in the present case, but acting under a compulsory necessity for their own safety and self-preservation." He concedes, therefore, that if Willis and Ryal had been "free agents," the defendant would not have been liable. In other words, the intervention of a "free agent" breaks causal connection.2 § 139. Mischievous consequences of making one man liable for 1 Scott v. Shepherd, supra, § 95. 2" One of the most valuable of the criteria furnished us by the authorities is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened of itself, sufficient to stand as the cause of the mischief, the other must be considered too remote." Ins. Co. v. Tweed, 7 Wallace, 44. |