ordinary rules of society to risk a few days of unconscious or of exquisitely painful existence for even a slight probability of recovery. So, also, there exist, to follow the argument of this acute reasoner, certain necessary though dangerous trades, of which we can say statistically that in them will be sacrificed prematurely the lives not merely of those who voluntarily engage in them, but of third persons not so assenting. Yet in such cases (e. g. gas manufactures and railroads), we do not hold that liability for such injuries attaches to those who start the enterprise foreseeing these consequences. If the consequence flows from any particular negligence, according to ordinary natural sequence, without the intervention of any independent human agency, then such consequence, whether foreseen as probable or unforeseen, is imputable to the negligence. But if the agency by which the harm is done is conducted with proper precautions, and is itself one of the necessary incidents of our social life, the persons concerned in managing such agencies are not liable for injuries incidentally inflicted on others, even though such injuries were foreseen. § 76. The foreseeing of an injury may however be an incident from which both dolus and culpa may be inferred.—It must not be supposed, however, that the foreseeing an event as probable· has nothing to do with the imputation of liability. It is true that it is not enough to make a person liable for hurt done through his. agency that he foresaw the probability of such hurt in general,. for the hurt may be one of the regular and lawful incidents of a lawful employment, such as the making of gunpowder. So, on the other hand, if such hurt is one of the incidents of improper conduct on the part of the person charged, he cannot relieve him-self by proof that he did not foresee it, because it was his duty to have marshalled the probabilities, and he is liable for negligence in omitting so to do. At the same time it must not be forgotten that the probability of a particular result has much to do in explaining the motive prompting to such result. Motive is the creature of probabilities. A certain result is probable, and I do what will lead to this result. Two extremes however, in this view, are to be avoided. The absolute foreseeing of a result is not essential to the imputation of negligence, for this is incompatible not only with the idea of negligence, but with that of moral agency which precludes absolute foreknowledge. So the foreseeing of a barm as remotely and slightly probable does not involve the imputation of such a harm, for there is nothing that we can do that may not remotely produce some harm, and therefore if we are to avoid such imputation we must do nothing. But if an event regularly (i. e. not uniformly, but in accordance with natural laws) follows a cause, then it is a contingency which a prudent man would expect ; and so, on the other hand, that a prudent man would expect it is strong proof that it regularly follows in accordance with natural sequence. § 77. Nor, on the other hand, as has been already shown,1 can we claim that the fact that a particular consequence could not be reasonably foreseen relieves its negligent author from imputability. The fact is that the consequences of negligence are almost invariably surprises. A man may be negligent in a particular matter a thousand times without mischief; yet, though the chance of mischief is only one to a thousand, we would continue to hold that the mischief, when it occurs, is imputable to the negligence. Hence it has been properly held that it is no defence that a particular injurious consequence is "improbable," and "not to be reasonably expected," if it really appear that it naturally followed from the negligence under examination.2 § 78. "To be reasonably expected" means no more than "in ordinary natural sequence."- Nor, when we scrutinize the cases in which the test of "reasonable expectation" is applied, do we find that the "expectation" spoken of is anything more than an expectation that some such disaster as that under investigation will occur on the long run from a series of such negligences as those with which the defendant is charged. Indeed, even by Pollock, C. B., whose language is so frequently quoted as sustaining this test, the phrase is used, as we find from other expressions of the same judge, simply for the purpose of excluding those contingencies which are so remote that they are not, in the long run, 1 Supra, § 16, 74. 2 Higgins v. Dewey, 107 Mass. 494. See White v. Ballou, 8 Allen, 408; Luce v. Dorch. Ins. Co. 105 Mass. 297; Dowell v. Steam Nav. Co. 5 E. & B. 195; Dymen v. Leach, 26 L. T. Ex. 221; Clarke v. Holmes, 7 H. & N. 937; Senior v. Ward, 1 E. & E. 385; Williams v. Clough, 3 H. & N. 258; Burrows v. March Gas, &c. Co. L. R. 5 Ex. 67; Gould v. Oliver, 2 within the range of experience. "I entertain considerable doubt," so it is said by this high authority," whether a person who has been guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated. I am inclined to consider the rule of law to be this, that a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur." It is clear that this learned judge, therefore, simply intends to say that imputation exists as to all "reasonable contingencies ;" and this means that imputation exists as to consequences that in a long series of events appear regular and natural, not consequences only such as the party may at the time "reasonably foresee." And Lord Campbell makes this still clearer when he tells us that "if the wrong and the legal damage are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, the wrong and the damage are not sufficiently conjoined or concatenated, as cause and effect, to support an action." This is substantially the test adopted in the text. The particular damage must be viewed concretely, and the question asked, "Was this in ordinary natural sequence " from the negligence? If so, the damage is imputable to the party guilty of the neglect.3 2 1 Greenland v. Chaplin, 5 Ex. 248. 2 Gerhard v. Bates, 2 Ell. & Bl. 490. 8 This view is sustained in 1 Smith's Lead. Cas. (Eng. ed.) 132. "The cause of an event," says Appleton, C. J., in Moulton v. Sanford, 51 Maine, 134, "is the sum total of the contingencies of every description, which, being realized, the event invariably follows. It is rare, if ever, that the invariable sequence of events subsists between one antecedent and one consequent. Ordinarily that condition is usually termed the cause, whose share in the matter is the most conspicuous and is the most immediately preceding and proximate to the event." Cited, with approval, in Sutton v. Wauwontosa, 29 Wisc. 21. This definition, which, down to the part in italics, is substantially that of J. S. Mill, is open in this respect to objections which will be more fully stated in the Appendix. The objection to the part in italics is, that it includes material conditions as well as moral causes. Jeffersonville, &c. R. R. v. Riley, 39 Ind. 568. See supra, § 15-16. 83 II. DISTINCTION BETWEEN ACTS AND OMISSIONS. § 79. Distinction between culpa in faciendo and culpa in non faciendo. A distinction has been frequently taken between negligence in commission and negligence in omission; and this view has been advanced not only by Donell, a learned jurist, to whose acuteness we owe in other respects much, but by a contemporaneous English judge of much sagacity.1 Under these circumstances it is proper to consider it somewhat in detail. § 80. Under the Roman law. By the Aquilian law, as we have seen, a party whose property or person is injured by the negligence of another can, independently of contract, have redress, under certain limitations, from the party injured. But it is not necessary that under this law the aggression should consist of an act of positive commission. Undoubtedly the Roman law, resting, as we have seen, upon that theory of individual independence which was the pride of the jurists, held that no man could usually be made liable for a mere omission to act. Yet even under this law an omission created a liability when it was a breach of a positive duty. An interesting case to this effect is given in the Digest, in the discussion of the Aquilian law. One servant lights a fire and leaves the care of it to another. The latter omits to cheek the fire, so that it spreads, and burns down a villa. Is there any one liable for the damages? The first servant is chargeable with no negligence, and the second chargeable only with an omission. Of course, if we follow the maxim that a mere omission cannot be the basis of a suit, there can be no redress. But Ulpian, who on another occasion insists strongly on this maxim as an essential principle of elementary law, casts it summarily aside when the attempt is to so use it as to confuse the bare omission of an act we are not bound to perform with the imperfect performance of an act to which we are bound. Against the negligenter custodiens, he decides, the utilis Leg. Aq. can be enforced; and there can be no question that he decides rightly, and in full accordance with his own views as to abstract nonliability for pure omissions. For it is clear that in the case before us, the non-action of the second servant is equivalent to 1 Bramwell, J., in Southcote v. Stanley, 1 H. & N. 248; Gallagher v. Humphrey, 10 W. R. (Q. B.) 664. 2 L. 27. § 9. D. ad L. Aquil. 2. See also Cleland v. Thornton, 43 Cal. 437. action. He undertakes the charge of the fire, and in the imperfect performance of this charge he acts affirmatively and positively. So, also, is it in the well known case of a physician who undertakes the case of a patient. A physician is not liable for not undertaking the case of a sick stranger. If, however, he undertakes the case, he is liable, though he has as yet given no advice. For, as Hasse well argues, it would be as absurd to require that some remedy should have been actually administered by him, in order to constitute liability on his part, as it would be to require, in order to make the person undertaking to watch a fire liable, that he should have stirred the coals with the tongs. Whoever, in other words, undertakes an office or duty, is as responsible for negative as he is for affirmative misconduct in the discharge of such office or duty. He is not liable, as a general rule, because he declines to accept the office or duty. But accepting it, he is bound to perform it well. Voluntatis est suscipere mandatum, necessitatis est consummare.2 § 81. Donell's limitations as to culpa in non faciendo.— But to go into the question more in detail, culpa in non faciendo is considered by Donell in the following successive stages: (1) He who is invited to undertake a duty has the alternative of accepting or rejecting. If he enters on the discharge of the duty, and in discharging it injures instead of aiding, he becomes liable for the injury. (2) But if he undertakes the duty and omits something in its performance, there are two conditions in which he is excusable: a. He may have been ignorant that he was required to act positively. b. While knowing he was required so to act, he may have doubted his capacity. To refuse to do that for which we feel ourselves incompetent is certainly not censurable. Of course to this is the qualification, nisi alia res te ad diligentiam obliget. But, answers Hasse, the qualification nisi alia res te ad diligentiam obliget contains the principle at issue. For if I am not bound to certain duties to another, I cannot be compelled to perform such duties, no matter what may be the moral reasons calling on me to act. If, however, I undertake the performance of 1 See L. 8. pr. D. ad L. Aq. 2; Hasse, p. 22. 2 See supra, § 12, 13; infra, § 442. |