CHAPTER III. CAUSAL CONNECTION. I. Definition of causation, § 73. Specific injury need not have been foreseen, § 74. Yet such foreseeing an evidential incident, § 76. "Reasonably expected" converti ble with "ordinary natural sequence," § 78. II. Distinction between acts and omissions, § 79. Omissions not in discharge of positive duty not the subject of suit, § 82. But are so when constituting a defective discharge of a legal duty, § 83. III. Distinction between conditions and causes, § 85. IV. Causation requires a responsible human agent, § 87. Persons incapable of reason, § 88. Sending explosive compound Person acting precipitately and un- V. Causation must be in ordinary natural sequence, § 97. Conformity with well known material forces, § 97. Natural and probable habits of ani mals, § 100. Natural and probable habits of men Act of public enemy. Vis major, Provoked casus no defence, § 123. Necessary sacrifice of property in order to avoid public calamity, § 126. Casus no defence when it could be avoided, § 127. Burden of proof as to casus, or vis major, § 128. VI. Indiscretion or concurrence of party injured, § 130. This bar not based on maxim volenti non fit injuriam, but on the interrup- › tion of causal connection, § 132. VII. Interposition of independent responsible human agency, § 134. This is by Roman law a bar, § 135. Mischievousness of opposite view, § 139. Its unphilosophical character, § 140. Illustrations, § 141. But limitation does not apply to concurrent interpositions, § 144. Nor where such interposition is the natural consequence of defendant's act, § 145. Setting loose worrying dogs, § 100. VIII. Interposition of intermediate object, Permitting cattle to stray, § 101. Horses taking fright on public roads, § 103. Horse switching his tail over reins, § 106. Frightening horses on road, § 107. which if due care had been taken would have averted disaster, § 148. Intermediate dams or watercourses in cases of freshets, § 148. Intermediate buildings in cases of fire, § 149. I. DEFINITION OF CAUSATION. § 73. A NEGLIGENCE is the juridical cause of an injury when it consists of such an act or omission on the part of a responsible human being as in ordinary natural sequence immediately results in such injury. Such, in fact, we may regard as the meaning of the term "Proximate cause," adopted by Lord Bacon in his maxims. The rule, as he gives it in Latin, is: "In jure non remota causa sed proxima spectatur," which he paraphrases as follows: "It were infinite for the law to consider 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 for any further degree." This proposition he contents himself with illustrating by a 'series of cases from the Year Books, of which the following is the first : "As if an annuity be granted pro consilio impenso et impendendo, and the grantee commit treason, whereby he is imprisoned, so that the grantor cannot have access unto him for his counsel; yet, nevertheless, the annuity is not determined by this nonfeasYet it was the grantee's act and default to commit the treason, whereby the imprisonment grew: but the law looketh not so far, but excuseth him, because the not giving counsel was compulsory and not voluntary, in regard of the imprisonment." ance. A series of similar black-letter cases follow, showing that Bacon's object was rather to explain the maxim by authorities with which the ordinary legal mind was then mainly conversant, than to bring his own matchless powers to bear in the philosophical expansion of the maxim. Of the latter mode of treatment we have but a glimpse in the following: 66 Also you may not confound the act with the execution of the act; nor the entire act with the last part, or the consummation of the act." In the Cambridge manuscript, as given by Mr. Heath, we have the following rendering of this passage: "Also you may not confound the act with the execution only of the act, and so the cause of the act with the execution of the act, and by that means make the immediate cause a remote cause." Of this qualification we will find numerous illustrations in the 1 Reg. 1. following pages. Thus the servant's negligence when the master is sued is, to use Bacon's language, the "execution of the act, or the "last part" of the act; and the master's negligence, in employing the servant, therefore, is the "immediate cause and not the remote cause." So also we may say as to the gross negligence of a railroad company in running down cattle. The cattle, if more sagacious, might have left the track; and at all events, their staying on the track is a condition immediately precedent to their being run down. A condition of prior precedence is the negligence of the engineer. Yet the latter is, in a suit against the railroad, to recur to Bacon's phraseology, the "immediate" and not the "remote " cause. Yet, though Bacon avoids philosophical and even juridical exposition of his text, it is natural to infer that he does so because the text is itself virtually from Aristotle, whose works were then in the hands of jurists as well as of philosophers, and whose authority even the powerful criticisms of Hume and of Mr. J. S. Mill has failed to shake. By Aristotle causes are divided into four heads; the material, the formal, the efficient, and the final. The material cause is the matter from which a thing is made, and without which it cannot be made; as marble is the matter of a statue. The formal cause is the archetype, as the idea of the sculptor is the formal cause of the statue. The efficient cause is the principle of change or motion which produces the thing; as, in a juridical sense, the will of the sculptor is the prompting power which produced the application of his idea to the marble, and, in a theological sense, the Divine will is the prompting power which evolved the Divine idea in the formation of both sculptor, of marble, and of the everlasting hills from which the marble is dug. This is the Apxy TŶs Kivýσews; the causa efficiens, to which the jurists constantly advert. The final cause is the object of a thing; the ultimate beneficial purpose for which it is designed; To ov veka Kaι To ȧyabov, causa finalis. This classification is expressly accepted by Bacon in his "De Augmentis.”1 It is true that he declines to enter upon the discussion of final cause, "the inquisition" of which he declares "is barren," "like a virgin consecrated to God." But his mode of treating the "causa efficiens" makes it plain that he regards it as convertible with the "proximate cause of the maxim.2 1 Book III. ch. v. Meaning of term “proximate,” il § 74. Not necessary that the specific injury should have been foreseen. It is true that we are frequently told that liability in negligence attaches, when the party charged has reasonable grounds to expect the damage that occurred in consequence of his lustrated by insurance cases. The term "proximate" is illustrated by a series of cases which, though not in the direct line of the present inquiry, may be invoked for their juridical value. "Perils of the sea are insured against in our marine policies. Is the loss of a particular ship chargeable to a peril of the sea? It has been generally ruled that the peril must be the proximate and not the remote cause of the disaster. Taylor v. Dunbar, L. R. 4 C. P. 206; Seagrave v. Union Mar. Ins. Co., L. R. 1 C. P. 320; Hagedorn v. Whitmore, 1 Stark. N. P. C. 157; Grill v. General Iron Co., L. R. 3 C. P. 476; S. C., L. R. 1 C. P. 600; Livie v. Janson, 12 East, 653, citing Green v. Elmslie, Peake N. P. C. 212; Hahn v. Corbett, 2 Bing. 205; Walker v. Maitland, 5 B. & Ald. 171; Waters v. Louisville Ins. Co. 11 Peters, 220; Columbia Ins. Co. v. Lawrence, 10 Peters, 517; Patapsco Ins. Co. v. Coulter, 3 Peters, 222; General Mut. Ins. Co. v. Sherwood, 14 Howard (U. S.) 354; Patrick v. Commercial Ins. Co. 11 Johns. R. 14; and other cases cited in Broom's Legal Maxims (5th Lond. ed.) 216 et seq. "A policy of insurance," says an able article on this topic in the American Law Journal for January, 1870, p. 214," is a contract of a fixed form. By use its terms have obtained a settled meaning. Its subject matter is extensive. It is a contract made in the interest of trade. Large amounts of property are covered by policies . containing the same stipulations. The contract is one of indemnity. In determining the question, whether a peril insured against was the proxi mate or the remote cause of a loss, or, what is the same question, whether a loss of that general description was intended by the parties to be covered by the policy, the peculiar nature of a policy of insurance, and the class of interests it covers, are taken into account. The particular intent of the parties is subservient to the public bearing of the question. The terms proximate and remote, in their application to questions of insurance, thus receive in some respects a more enlarged, and in some a more restricted, signification than they have when they are used in giving a construction to other contracts. But the maxim is as well applicable as a rule of construction for all contracts. "In actions for negligence, a defendant is held liable for the natural and probable consequences of his misconduct. In this class of actions his misconduct is called the proximate cause of those results which a prudent foresight might have avoided. It is called the remote cause of other results. "In determining the amount of damages in an action of contract, the breach of contract is called the proximate cause of such damages as may reasonably be supposed to have been contemplated by the parties. If there are other damages, of those it is called the remote cause. "There is no settled rule for the application of the maxim in determining the damages in actions of tort. In such actions the damages, which are called proximate, often vary in proportion to the misconduct, recklessness, or wantonness of the defendant." neglect ; and this is sometimes pushed to the extent of maintaining that when there is on his part such reasonable grounds of expectation, then he is liable, and that he is not liable when there are no such reasonable grounds of expectation. Thus we are told by Pollock, C. B., that "every person who does a wrong is at least responsible for all the mischievous consequences that may be reasonably expected to result under ordinary circumstances from such misconduct ; "1 and constantly the idea of "reasonableness of expectation" is made convertible with imputability. It has however been already shown,2 that there may be cases in which there is such a reasonable expectation in which there is no imputability of negligence. § 75. Illustrations to the same effect may be drawn almost without limit from an ordinary observation. The miner, the manufacturer, and the merchant, so argues a vigorous German thinker of our own day, must regard it as probable that the weapon to which each contributes his share may be used to commit a wrong; the roof coverer must regard it as probable that a tile may at some future time be detached and may strike some one walking in the street. So parents, especially such as are not themselves distinguished for their reverence for law, must regard it as not improbable that their children may become law breakers. In neither of these cases, however, does this perception of probability by itself create liability. Even when this probability approaches the highest grade, there are cases in which liability is by common consent excluded. For instance, a man is suffering with a sickness which in a few days will terminate fatally, unless he submits to a perilous operation which, if not successful, will cause his death in a few hours. He is unconscious; and therefore unable to give or withhold assent. A surgeon performs the operation skilfully but unsuccessfully, and the patient dies, not of the disease but of the operation. The surgeon saw that it was highly probable that death would ensue; yet he is nevertheless not liable for the death, for he acted, notwithstanding this probability, according to the rules usually accepted in practical life. If desperate operations are not risked in desperate cases, improvement in surgery is greatly hindered; and besides this, it is in conformity with the 2 Supra, § 16. 1 Pollock, C. B. - Rigby v. Hewitt, 5 Exch. 243; cited by Byles, J. Hoey v. Felton, 11 C. B. N. S. 143. 8 Bar, Causalzusammenhange, 1871, p. 13. |