pelling him. This plainly means that it was not negligent, i. e., not unreasonably dangerous, to put him off as was done, and therefore the conductor, having an unquestioned right to put him off in a proper manner, had been guilty of no breach of duty. The question whether the injury to him was a proximate consequence of the conductor's act did not properly arise at all. Even if it had been proximate, the company would not have been liable. So damage has been said to be remote, because the court thought that no right of the plaintiff had been violated. The same has been said when the real case was that it did not sufficiently appear that the conduct complained of was actually the cause of the consequence at all, or even that any such consequence had actually happened or, where a claim has been made for future or prospective damage, that it really would happen. Of course, if a certain consequence is not the consequence of a certain alleged cause at all, it is not a proximate consequence of it. But the questions of actual cause, which is always one of pure fact, and of proximate cause, which may be a question of law, are quite distinct. It must appear that the cause has actually produced the consequence, or will actually produce it, before the question of the proximateness of that consequence can be raised at all. This covers many cases where damage has been held remote because it was too uncertain or speculative, but not all such cases. When the duty broken did not correspond to the right violated, this has often been expressed by saying that the damage was remote. This is the reason usually given for holding that a life insurance company cannot recover against a person who negligently kills one of its policy-holders. As has been explained, the true reason is want of correspondence between the duty and the right. Such damage in fact might be proximate, if the test of proximateness were probability, as in such a case many courts would hold it to be. If the actor knew that the life of the person who was endangered by his negligent act was insured, a loss to the insurance company might be a probable, and therefore a proximate, consequence of the act. In Anthony v. Slaid, the plaintiff had contracted with a town to support certain paupers and supply them with neces 2 Railways Co. v. Valleley, 32 Oh. St. 345 (1877). * Lamb v. Stone, 11 Pick. (Mass.) 526 (1831). saries for a fixed sum. The defendant committed a battery upon one of the paupers and injured him, whereby the plaintiff was put to expense for his care. It was held that the plaintiff had no cause of action against the defendant. The court said that the damage to the plaintiff was remote. It may really have been remote, but would have been probable had the defendant known of the contract. Really the case was one of want of correspondence between the duty and the right. The plaintiff had no potestative right in the pauper, and the only right of his violated was the right of pecuniary condition, to which the duty broken did not correspond. Had the person injured been the plaintiff's wife, in whose bodily security he had a potestative right, the damage to him would have been proximate. The expense to which he would have been put by performing the duty to take care of his wife, to which he would have been subject because of the marital relation, would have been consequential damage proximate to the violation of his potestative right in her. But his expense for the pauper was not necessarily remote because his duty was imposed by contract rather than by a marital relation. The question of its proximateness did not properly arise at all; that question was never reached, the other necessary elements of a tort not being present. There are three, and only three, tests of proximateness, namely, intention, probability and the non-intervention of an independent cause. Any intended consequence of an act is proximate. It would plainly be absurd that a person should be allowed to act with an intention to produce a certain consequence, and then when that very consequence in fact follows his act, to escape liability for it on the plea that it was not proximate. Probability has the same meaning here as in connection with duties of probability, where the duty is to act or not to act in a way that will probably produce certain consequences. It is a name for some one's opinion or guess as to whether a consequence will result. In fact consequences follow causes according to invariable laws. To a sufficiently comprehensive intelligence everything would be certain, nothing merely probable. It is only because we have not knowledge of events, that are in themselves fixed and certain, that we have to consider probabilities. The person whose opinion is taken is a reasonable and prudent man in the situation of the actor. The situation consists of such facts as are known to the actor at the time of the act, including those facts of which he is charged with knowledge or deemed to have constructive knowledge. It would be unjust to require a person to act with reference to facts which were unknown to him or, when probability is the test of his liability, to hold him responsible for happenings which, with the use of proper attention, he could not foresee as probable. It follows that the probability of a consequence must be taken as at the time of the act. A probable consequence is one that to a reasonable and prudent man, having such knowledge as the actor had at the time of the act, would then have seemed probable. Of course, it is assumed that such a man gives proper consideration before acting to the possible consequences of his act. Probability is a matter of degree, ranging all the way from moral certainty to bare possibility. For legal purposes probability means a reasonable probability, or what amounts to the same thing in cases of tort, an unreasonably great probability, i. e., such a probability as would deter a reasonable and prudent man in the actor's situation from doing the act. It has been laid down a hundred times that negligence, i. e., conduct that amounts to the breach of a duty of probability, consists in doing something that a reasonable and prudent man in the actor's situation would not do. There are some consequences of conduct which in a given case, though they might be recognized as possible and therefore as having a certain degree of probability, are so unlikely to happen that a reasonable and prudent man would disregard them and not allow the chance of their happening to influence his conduct. We cannot go through life without continually taking some risks of injuring ourselves or others. All that the law requires is that we shall not take unreasonably great risks. Reasonable probability does not mean a preponderance of probability. In order that a consequence shall be legally probable, it is not necessary that it be more likely to happen than not. In order that a consequence shall be probable it is not necessary that the precise consequence that actually happens in all its details should have been probable, nor that it should be connected with its cause by the precise chain of causation that was probable. It need only be of such a general character as might reasonably have been foreseen. The following examples will illustrate this. Owing to the negligence of a railroad company, it was probable that a cer tain train would be derailed somewhere on a certain stretch of track. A person rightfully on the track stepped off and stood by the side of the track to let the train pass. It happened to be derailed just at that point, and he was hurt. The injury was held to be probable,5 though the odds against the train's being derailed at that particular point and any one's being there at the time were thousands to one. The defendant's carriage was negligently driven into the plaintiff's, and the plaintiff was hurt. The collision was a gentle one; and the defendant claimed that such an injury was not a probable consequence of a gentle collision. The consequence was held proximate; it was a probable consequence of a collision.6 The defendant set fire on his own land in such circumstances that it was negligent, i. e., unreasonably dangerous, because of the probability that it would spread to the plaintiff's land. It did so spread, and damaged the plaintiff's property. The damage was held a probable consequence of the defendant's act, though the fire was communicated by sparks carried by the wind, a mode of communication that could not reasonably have been foreseen.7 If injury to a person or thing in a particular place or situation is probable, and it is probable that there will be some person or some thing in that situation, and a specific person or thing is injured, the injury will be probable, though it was very improbable that that particular person or thing would be there. If a person discharges a gun in the direction of a crowd of people, where he will probably hit some one, and hits John Doe, one of the crowd, the injury to John Doe is not improbable because the actor reasonably believed that John Doe was not there. If a township leaves a bridge without a guard rail, and a horse takes fright and backs off the edge, the injury is not improbable because it could not be foreseen that that specific horse would do so. It was probable that some horse would. There may, however, be some particular classes of persons or things, e.g., trespassers or licensees, whose presence in a place is not probable. There are many special rules as to the probability of certain kinds of consequences or of consequences which are connected with the cause in certain ways, which cannot be mentioned here. The fact 'Mobile, J. & K. C. R. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360 (1908). 'Higgins v. Dewey, 107 Mass. 494 (1871). Yoders v. Amwell, 172 Pa. St. 447, 33 Atl. 1017 (1896). that a consequence is partly due to the coöperating wrongful or negligent conduct of the person injured or of a third person may or may not make it improbable; such conduct may be a thing that should have been foreseen and allowed for. The third test of proximateness is the non-intervention of an independent cause between the original cause and the consequence in question. When such a cause intervenes and thus makes the consequence remote, it may be considered to have the effect of legally isolating the principal cause, the cause whose proximateness is in question, from the consequence. Therefore it will be convenient to call it an isolating cause. Some special kinds of isolating causes will be mentioned in connection with the definitional consequences of peremptory duties a little further on. The question here is as to the ordinary meaning of an isolating cause. The principal cause seldom or never produces the consequence directly, but through a chain of intermediate causes, each of which is a consequence of the preceding one and a cause of the next. The principal cause, P., produces a consequence, A. A. produces B., and B., in turn, produces the consequence in question, C. This may be represented thus: P.-A.-B.-C. Intermediate causes, A. and B., are never isolating causes, because they are themselves consequences of P. All the authorities agree that an isolating cause must be an independent cause, i. e., independent of the principal cause, not produced by it. This may be represented as follows: It is plain, however, that the mere fact that a coöperating cause is an independent cause is not enough to make it an isolating cause, because there are always independent causes coöperating. No consequence that ever happens is the result of a single cause or the end of a single sequence of causation. It is always the meeting place of many such sequences. An isolating cause must be an active efficient cause, the operation of some active agency, not merely some condition of things which makes it possible for the principal cause to produce the consequence. • Simmonds v. New York & N. E. R. R. Co., 52 Conn. 264 (1884); Wallace v. Standard Oil Co., 66 Fed. 260 (1895); Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356, 911 (1882). |