Apart from the extremes just mentioned, it is now easy to see how the point at which a man's conduct begins to be at his own peril is generally fixed.When the principle is understood on which that point is determined by the law of torts, we possess a common ground of classification, and a key to the whole subject, so far as tradition has not swerved the law from a consistent theory.It has been made pretty clear from what precedes, that I find that ground in knowledge of circumstances accompanying an act or conduct indifferent but for those circumstances.
But it is worth remarking, before that criterion is discussed, that a possible common ground is reached at the preceding step in the descent from malice through intent and foresight.Foresight is a possible common denominator of wrongs at the two extremes of malice and negligence.The purpose of the law is to prevent or secure a man indemnity from harm at the hands of his neighbors, so far as consistent with other considerations which have been mentioned, and excepting, of course, such harm as it permits to be intentionally inflicted.When a man foresees that harm will result from his conduct, the principle which exonerates him from accident no longer applies, and he is liable.But, as has been shown, he is bound to foresee whatever a prudent and intelligent man would have foreseen, and therefore he is liable for conduct from which such a man would have foreseen that harm was liable to follow.
Accordingly, it would be possible to state all cases of negligence in terms of imputed or presumed foresight.It would be possible even to press the presumption further, applying the very inaccurate maxim, that every man is presumed to intend the natural consequences of his own acts; and this mode of expression will, in fact, be found to have been occasionally used, more especially in the criminal law, where the notion of intent has a stronger foothold. The latter fiction is more remote and less philosophical than the former; but, after all, both are equally fictions.Negligence is not foresight, but precisely the want of it; and if foresight were presumed, the ground of the presumption, and therefore the essential element, would be the knowledge of facts which made foresight possible.
Taking knowledge, then, as the true starting-point, the next question is how to determine the circumstances necessary to be known in any given case in order to make a man liable for the consequences of his act.They must be such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm.But this is a vague test.How is it decided what those circumstances are? The answer must be, by experience.
But there is one point which has been left ambiguous in the preceding Lecture and here, and which must be touched upon.It has been assumed that conduct which the man of ordinary intelligence would perceive to be dangerous under the circumstances, would be blameworthy if pursued by him.It might not be so, however.Suppose that, acting under the threats of twelve armed men, which put him in fear of his life, a man enters another's close and takes a horse.In such a case, he actually contemplates and chooses harm to another as the consequence of his act.Yet the act is neither blameworthy nor punishable.But it might be actionable, and Rolle, C.J.ruled that it was so in Gilbert v.Stone. If this be law, it goes the full length of deciding that it is enough if the defendant has had a chance to avoid inflicting the harm complained of.And it may well be argued that, although he does wisely to ransom his life as he best may, there is no reason why he should be allowed to intentionally and permanently transfer his misfortunes to the shoulders of his neighbors.
It cannot be inferred, from the mere circumstance that certain conduct is made actionable, that therefore the law regards it as wrong, or seeks to prevent it.Under our mill acts a man has to pay for flowing his neighbor's lands, in the same way that he has to pay in trover for converting his neighbor's goods.Yet the law approves and encourages the flowing of lands for the erection of mills.
Moral predilections must not be allowed to influence our minds in settling legal distinctions.If we accept the test of the liability alone, how do we distinguish between trover and the mill acts? Or between conduct which is prohibited, and that which is merely taxed? The only distinction which I can see is in the difference of the collateral consequences attached to the two classes of conduct.In the one, the maxim in pari delicto potior est conditio defendentis, and the invalidity of contracts contemplating it, show that the conduct is outside the protection of the law.In the other, it is otherwise. This opinion is confirmed by the fact, that almost the only cases in which the distinction between prohibition and taxation comes up concern the application of these maxims.
But if this be true, liability to an action does not necessarily import wrong- doing.And this may be admitted without at all impairing the force of the argument in the foregoing Lecture, which only requires that people should not be made to pay for accidents which they could not have avoided.
It is doubtful, however, whether the ruling of Chief Justice Rolle would now be followed.The squib case, Scott v.Shepherd, and the language of some text- books, are more or less opposed to it. If the latter view is law, then an act must in general not only be dangerous, but one which would be blameworthy on the part of the average man, in order to make the actor liable.But, aside from such exceptional cases as Gilbert v.Stone, the two tests agree, and the difference need not be considered in what follows.
I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it.
