and defaults a man is liable. When complaint is made that one person has caused harm to another, the first question is whether his act (h) was really the cause of that harm in a sense upon which the law can take action. The harm or loss may be traceable to his act, but the connexion may be, in the accustomed phrase, too remote. The maxim "In iure non remota causa sed proxima spectatur" is Englished in Bacon's constantly cited gloss: "It were infinite for the law to judge the causes of causes, and their impulsions one of another: therefore it contenteth itself (h) For shortness' sake I shall often use the word "act" alone as equivalent to "act or default." citing Connecticut Ins. Co. v. New York, etc., R. I. Co., 25 Conn. 265; Anthony v. Slaid, 11 Met. 290; Rockingham Ins. Co. v. Boscher, 39 Me. 253. See Zier v. Hofflin, 33 Minn. 66; Austin v. Barrows, 31 Conn. 287; Brooke v. Tradesman's Nat. Bank, 69 Hun, 202; 23 N. Y. S. Rep. 802; Swift v. Eastern Warehouse Co., 86 Ala. 294; 5 So. Rep. 505; Jex v. Strauss, 55 N. Y. Superior Ct. 52; Malone v. Pittsburgh & L. E. R. Co., 152 Pa. St. 390; 25 At. Rep. 638; 31 W. N. C. 407; Kahl v. Love, 37 N. J. L. 5; McClelland v. Louisville, etc., Ry. Co., 94 Ind. 276. A city is not liable for an accident caused by a horse's taking fright at the sound caused by the wheel of the vehicle, which plaintiff is driving, scraping against a stone in the road, although such stone is an obstacle over which a vehicle could not pass in safety. Bowes v. City of Boston, 155 Mass. 344; 29 N. E. Rep. 633. By reason of a collision of railway trains a passenger was injured, and becoming thereby disordered in mind and body he, some eight months thereafter, committed suicide. Held, in a suit by his personal representatives against the railway company, that as his own act was the proximate cause of his death, they are not entitled to damages. Scheffer v. Railroad Co., 105 U. S. 249. If there is a defect in a hitching post, and the horse hitched to it is frightened by the running away of another horse, and breaks the post and runs over a person in the street, the latter cannot maintain an action for the defect in the post as the cause of his injury. Rockford v. Tripp, 83 Ill. 347. A woman's illness caused by fright from the shooting of a dog in her presence is not such a consequence as would be supposed to naturally follow the act. Renner v. Canfield, 36 Minn. 90. Nor is a woman's premature delivery caused by a quarrel near her house. Phillips v. Dickerson, 85 Ill. 11. with the immediate cause; and judgeth of acts by that, without looking to any further degree" (i). Liability must be founded on an act which is the "immediate cause of harm or of injury to a right. Again, there may have been an undoubted wrong, but it may be doubted how much of the harm that ensues is related to the wrongful act as its "immediate cause," and therefore is to be counted in estimating the wrong-doer's liability. The distinction of proximate from remote consequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded. Measure of damages. The normal form of compensation for wrongs, as for breaches of contract, in the procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direction of a judge. It is the duty of the judge (k) to explain to the jurors, as a matter of law, the footing upon which they should calculate the damages if their verdict is for the plaintiff. This footing or scheme is called the " measure of damages." Thus, in the common case of a breach of contract for the sale of goods, the measure of damages is the difference between the price named in the contract and the market value of the like goods at the time when the contract was broken. In cases of contract there is no trouble in separating the question whether a contract has been made and broken from the question what is the proper measure of damages (1). But in cases of tort the primary question (4) Maxims of the Law, Reg. 1. It is remarkable that not one of the examples adduced by Bacon belongs to the law of torts, or raises a question of the measure of damages. There could be no stronger Illustration of the extremely modern character of the whole subject as now understood. (k) Hadley v. Baxendale (1854), 9 Ex. 341, 23 L. J. Ex. 179. (1) Whether it is practically worth while to sue on a contract must, indeed, often turn on the measure of damages. But this need not concern us here. of liability may itself depend, and it often does, on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. The measure of damages, a matter appearing at first sight to belong to the law of remedies more than of "antecedent rights," constantly involves, in the field of torts, points that are in truth of the very substance of the law. It is under the head of measure of damages "that these for the most part occur in practice, and are familiar to lawyers; but their real connexion with the leading principles of the subject must not be overlooked here. Meaning of "immediate cause.' The meaning of the term immediate cause" is not capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed "immediate," "proximate,' or, to anticipate a little, " natural and probable,” which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was "immediate" or not does not matter. That which a man Meaning of "Immediate Cause." See American notes to Proximate Cause, post, p. 573. actually foresees is to him, at all events, natural and probable Liability for consequences of wilful act. In the case of wilful wrong-doing we have an act intended to do harm, and harm done by it. The inference of liability from such an act (given the general rule, and assuming no just cause of exception to be present) may seem a plain matter. But even in this first case it is not so plain as it seems. We have to consider the relation of that which the wrongdoer intends to the events which in fact are brought to pass by his deed; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the resulting hurt. But It extends to some consequences not intended. the consequences may be more than was intended, or different. And it may be different either in respect of the event, or of the person affected. Nym quarrels with Pistol and knocks him down. The blow is not serious in itself, Liability for consequences of wilful act. Malicious motives, alone, can never constitute a cause of action; but where the allegations are sufficient to sustain the action, independent of malice, it may be alleged and proved in enhancement of damages. Jenkins v. Fowler, 24 Pa. St. 308; Fowler v. Jenkins, 28 Id. 176; Mahan v. Brown, 13 Wend. 261; Stevens v. Kelley, 78 Me. 445; Jones v. Jones, 77 Ill. 562; Burke v. Smith, 69 Mich. 380; Hatch v. Pendergast, 15 Md. 251; 37 N. W. Rep. 838; Harwood v. Tompkins, 24 N. J. L. 425; Thornton v. Thornton, 63 N. C. 211; Jenks v. Williams, 115 Mass. 217; Heywood v. Tillson, 75 Me. 225; Bangor, etc., R. R. v. Smith, 49 Me. 9; Morris v. Scott, 21 Wend. 281; Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, etc., Co., 27 Fla. 157; 9 So. Rep. 679; Auburn, etc., R. Co. v. Douglass, 9 N. Y. 444; Stearns v. Sampson, 59 Me. 568; White v. Carroll, 42 N. Y. 161; Johnson v. Bouton, 35 Neb. 898; 53 N. W. Rep. 995; Johnson v. Chicago, etc., R. Co., 51 Ia. 25; 50 N. W. Rep. 543; Glendon Iron Co. v. Uhler, 75 Pa. St. 467; South Royalton Bank v. Suffolk Bank, 27 Vt. 505; West v. Forrest, 22 Mo. 341; Smith v. Goodman, 75 Ga. 198; Hawes v. Knowles, 114 Mass. 519. but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence from that which was intended happens as an incident of the same action. Again, one of Jack Cade's men throws a stone at an alderman. The stone misses the alderman, but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol; and, taking him for Pistol, Bardolph and Nymn seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redress, as if Bardolph and Nym meant to beat Poins, and not Pistol (m). Or, to take an actual and well-known case in our books (n), Shepherd throws a lighted squib into a building full of people, doubtless intending it to do mischief of some kind. It falls near a person who, by an instant and natural act of self-protection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave (m) In criminal law there is some difficulty in the case of attempted personal offences. There is no doubt that if A. shoots and kills or wounds X., under the belief that the man he shoots at is Z., he is in no way excused by the mistake, and cannot be heard to say that he had no unlawful intention as to X.: R. v. Smith (1855), Dears. 559. But if he misses, it seems doubtful whether he can be said to nave attempted to kill either X. or Z. Cf. R. v. Latimer (1886), 17 Q. B. D. 359, 55 L. J. M. C. 135. In Germany there is a whole literature of modern controversy on the subject. See Dr. R. Franz, "Vorstellung und (n) Scott v. Shepherd, 2 W. Bl. 892; and in 1 Sm. L. C. No doubt was enter. tained of Shepherd's liability; the only question being in what form of action he was liable. The inference of wrongful intention is in this case about as obvious as it can be; it was, however, not necessary, squib-throwing as Nares J. pointed out, having been declared a nuisance by statute. |