The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.
Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant.But it will be seen that the same result may be caused by a choice at different points.For instance, a man is sued for having caused his neighbor's house to burn down.The simplest case is, that he actually intended to burn it down.If so, the length of the chain of physical causes intervening is of no importance, and has no bearing on the case.
But the choice may have stopped one step farther back.The defendant may have intended to light a fire on his own land, and may not have intended to burn the house.Then the nature of the intervening and concomitant physical causes becomes of the highest importance.The question will be the degree of danger attending the contemplated (and therefore chosen) effect of the defendant's conduct under the circumstances known to him.If this was very plain and very great, as, for instance, if his conduct consisted in lighting stubble near a haystack close to the house, and if the manifest circumstances were that the house was of wood, the stubble very dry, and the wind in a dangerous quarter, the court would probably rule that he was liable.If the defendant lighted an ordinary fire in a fireplace in an adjoining house, having no knowledge that the fireplace was unsafely constructed, the court would probably rule that he was not liable.Midway, complicated and doubtful cases would go to the jury.
But the defendant may not even have intended to set the fire, and his conduct and intent may have been simply to fire a gun, or, remoter still, to walk across a room, in doing which he involuntarily upset a bottle of acid.So that cases may go to the jury by reason of the remoteness of the choice in the series of events, as well as because of the complexity of the circumstances attending the act or conduct.The difference is, perhaps, rather dramatic than substantial.
But the philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been, and what consequences he has actually contemplated as flowing from them, and then goes on to determine what dangers attended either the conduct under the known circumstances, or its contemplated consequence under the contemplated circumstances.
Take a case like the glancing of Sir Walter Tyrrel's arrow.If an expert marksman contemplated that the arrow would hit a certain person, cadit qucoestio.If he contemplated that it would glance in the direction of another person, but contemplated no more than that, in order to judge of his liability we must go to the end of his fore- sight, and, assuming the foreseen event to happen, consider what the manifest danger was then.But if no such event was foreseen, the marksman must be judged by the circumstances known to him at the time of shooting.
The theory of torts may be summed up very simply.At the two extremes of the law are rules determined by policy without reference of any kind to morality.Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community.
But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress.It thus naturally adopted the vocabulary, and in some degree the tests, of morals.But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril.
In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances.If there is danger that harm to another will follow, the act is generally wrong in the sense of the law.
But in some cases the defendant's conduct may not have been morally wrong, and yet he may have chosen to inflict the harm, as where he has acted in fear of his life.In such cases he will be liable, or not, according as the law makes moral blameworthiness, within the limits explained above, the ground of liability, or deems it sufficient if the defendant has had reasonable warning of danger before acting.This distinction, however, is generally unimportant, and the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct.
The tendency of a given act to cause harm under given circumstances must be determined by experience.And experience either at first hand or through the voice of the jury is continually working out concrete rules, which in form are still more external and still more remote from a reference to the moral condition of the defendant, than even the test of the prudent man which makes the first stage of the division between law and morals.It does this in the domain of wrongs described as intentional, as systematically as in those styled unintentional or negligent.
But while the law is thus continually adding to its specific rules, it does not adopt the coarse and impolitic principle that a man acts always at his peril.On the contrary, its concrete rules, as well as the general questions addressed to the jury, show that the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct.And it is certainly arguable that even a fair chance to avoid bringing harm to pass is not sufficient to throw upon a person the peril of his conduct, unless, judged by average standards, he is also to blame for what he does.
