plaintiff, a passenger, is thrown flat upon the highway. Before he has time to rise, he is there negligently run over by a wagon. Defendant's negligent management of the trolley car is a legal cause of the harm done to the plaintiff by the wagon passing over him.28 Illustration 2b. Defendant negligently sells gunpowder to a very young boy, who is evidently incapable of safely using or taking care of it. When the boy reaches home his father takes the powder from him and locks it up in a closet. Next day the father gives the powder to the boy, who throws it into the street and there sets it on fire, causing an explosion whereby plaintiff is hurt. Defendant's negligence in selling the powder to the boy is not a legal cause of the harm suffered by plaintiff.29 Illustration 3a. Defendant cut ice from a lake near a highway, and did not put up around the open space such fence guards as were required by statute. Plaintiff's horses escaped from the control of their driver, ran rapidly into the opening, and were drowned. If the fright and speed of the horses were such that they would have run into the opening even if it had been properly guarded, then the failure of the defendant to erect proper guards is not a legal cause of the drowning of the horses.30 Illustration 3b. A. strikes B., who is at the time so ill that she could not possibly have lived more than six weeks if she had not been struck. In consequence of the blow, B. dies earlier than she would otherwise have died. A.'s blow is the legal cause of the death of B.31 Illustration 4. A belt in a machine shop was broken by the negligence of defendant, the owner of the shop. Plaintiff undertook to mend the belt, and while doing so met with an accident for which defendant was not to blame. Plaintiff would not have attempted to mend the belt and would not have been hurt, if the belt had not previously been broken. Defendant's fault, which occasioned the breaking of the belt, is not a legal cause of the harm suffered by plaintiff while mending the break." 32 Illustration 5. Defendant navigates his ship so negligently that it strikes upon a shoal and becomes unmanageable and entirely beyond control. While in this condition, the ship is carried by the wind and tide against a sea wall of the plaintiff, damaging the wall. Defendant's fault in allowing the ship to become uncontrollable is a legal cause of the damage to the plaintiff's sea wall.33 Illustration 6. Defendant negligently left in the highway a truck loaded with iron, so placed on the truck that the iron would easily fall off. A third person wrongfully moved the truck, thereby unintentionally causing the iron to roll off and to hit the plaintiff. Damage of this kind might have been reasonably foreseen as a not unlikely consequence of leaving the truck in the highway. Defendant's fault in leaving the truck in the highway is a legal cause of the harm to the plaintiff.34 28 Adapted from Fine v. Interurban Street Ry. Co., 45 N. Y. Misc. 587, 91 N. Y. Supp. 43 (1904). 29 Adapted from Carter v. Towne, 103 Mass. 507 (1870). Compare Pittsburg, etc. Co. v. Horton, 87 Ark. 576, 113 S. W. 647 (1908). 30 Sowles v. Moore, 65 Vt. 322, 26 Atl. 629 (1893). 31 Substance of Illustration (5), Stephen, Digest of Criminal Law, 6 ed., 179, citing R. v. Fletcher, 1 Russ., Crimes, 4 ed., 703, 7 ed., 692 (1841). For a recent decision see McCahill v. New York Transportation Co., 201 N. Y. 221, 94 N. E. 617 (1911). Compare 2 Bishop, New Criminal Law, § 638, paragraph 3. 32 Schoultz v. Eckardt Mfg. Co., 112 La. 568, 36 So. 593 (1904). See Lord Dunedin in Dunnigan v. Cavan & Lind Mfg. Co., 48 Scot. L. R. 459, 461 (1911). 33 Bailiffs of Romney Marsh v. Trinity House, L. R. 5 Exch. 204, (1870). 34 Lane v. Atlantic Works, 111 Mass. 136 (1872). い Illustration 7a. Defendant, by fraudulent representation, induced plaintiff to refrain from selling shares in a certain corporation. While plaintiff was acting under this inducement in continuing to hold the stock, an officer of the corporation embezzled most of its funds, thereby greatly diminishing the value of the stock. Plaintiff thereafter sold his stock at a great reduction from its value at the date of the fraudulent representation. Neither plaintiff nor defendant foresaw, or had probable ground to foresee, this embezzlement. Defendant's fraudulent representation is a legal cause of the loss sustained by plaintiff.35 Illustration 7b. Plaintiff went to defendant's warehouse and demanded his goods which were there deposited. Defendant, by reason of his negligent failure to investigate, denied that the goods were there. Hence plaintiff went away without the goods. On the following night the goods in the warehouse were consumed by an accidental fire for which defendant was not to blame. Defendant's negligent failure to deliver the goods was a legal cause of the destruction of the goods.36 Assuming the "fragment of a code on torts" to have been enacted in the foregoing form, with the accompanying explanations and illustrations, what use should be made of it; how should it be applied upon the trial of a case? The judge, in charging the jury, should always state the general rule as the principal rule of law relating to causation. As to the explanations, or subsidiary rules, he should state such, and only such, as may be applicable to the facts of the particular case. Probably no one case would call for the application of all seven of these explanations. Whenever the judge states any one of these explanations, he should make it clear that he is not substituting the explan 35 Fottler v. Moseley, 185 Mass. 563, 70 N. E. 1040 (1904). 36 Railroad v. Kelly, 91 Tenn. 699, 20 S. W. 312 (1892); Stevens v. B. & M. R., I Gray (Mass.) 277 (1854). See this case stated in Appendix. If it is desired that the rule or requisites of causal relation should be stated without the addition of any explanations or illustrations, the following formulæ are suggested: There are two requisites: 1. (Generally) — That the damage would not have occurred just the same, if defendant's tort had not been committed. 2. Defendant's tort must have been a substantial and continuously effective factor in subjecting plaintiff to the damage. Or, in other words: 1. Defendant's tort must be one of a series of antecedent events, without which the damage would not have happened. 2. It must not only be an antecedent, but also a causative antecedent; i. e. an antecedent having a substantial and continuously efficient share in producing the damage. The two requisites might be stated more briefly by employing two Latin phrases: 1. Defendant's tort must be a causa sine qua non. 2. It must also be a causa causans. But this does not tell us what are the essential elements to constitute a causa causans. ation for the general rule, but is only trying to make it easier for the jury to understand the general rule and to apply it to the facts of the particular case. The explanations and illustrations are not intended to replace the general rule, but to illuminate it.37 As to the number of explanations or subsidiary rules: If seven, why not seventy or seven hundred? Why not state in detail the concrete point decided in every reported case which has arisen upon the subject of legal cause? Because our present purpose is, not to make a digest of all the decisions, but to bring out the most important elementary principles underlying those decisions. The decisions contain the rough material from which the leading principles are to be evolved; but a detailed statement of each separate decision is not equivalent to a statement of the leading principles. It would not give the resultant force of all the decisions taken together. It may be inexpedient to state general principles without adding any explanations or subsidiary rules. But it is not desirable to attempt to add subsidiary rules sufficiently numerous and sufficiently minute to point out unerringly the exact decision in every conceivable specific case. Even if sub-rules could be stated that would thus cover the whole ground definitely, "they would be very complicated, full of fine distinctions and hard to apply in practice."'38 Professor Terry correctly says that it "would be one of the most delicate problems of the whole work of codification" to decide "how far it would be wise to go in laying down subrules and specifications under general principles."39 If we have erred on this point in the present article, we think the error is on the side of fulness. Explanations 2, 5, and 6 are of less relative importance than Explanations 1, 3, 4, and 7. It might have been better to omit 2, 5, and 6. There is always the danger of over-definition. Sir J. F. Stephen 40 thinks it a mistake, in fram 37 See Chailley, Administrative Problems of British India, 361. 38 See language used in reference to another topic in Terry, Leading Principles of Anglo-American Law, § 581. 39 Terry, Leading Principles of Anglo-American Law, § 610. Compare Willard, Law of Personal Right, § 236. "Hugo's objection proceeds on the mistake of supposing that a Code must provide for every possible concrete case. But this (as I have shown already) is what no law (statute or written) can possibly accomplish. It would be endless." 2 Austin, Jurisprudence, 3 ed., 687. ing a code, "to try to anticipate captious objections.' He says: over-definition for that purpose is like the attempt to rid a house of dust by mere sweeping. You make more dust than you remove. If too fine a point is put upon language you suggest a still greater refinement in quibbling." As to objections which may be urged against the general rule which we have suggested:41 41 Before considering objections to the tests just stated in the “fragment of a code on torts," it may be useful to see how far those tests differ from the views expressed in the important opinion of Wardlaw, J., in Harrison v. Berkley, 1 Strob. L. (S. C.) 525 (1847), one of the earliest and ablest of the opinions which reject the alleged rule of non-liability for improbable consequences. Judge Wardlaw, in his dicta in that case, practically lays down two rules: 1. A wrongdoer is liable, at all events, for probable consequences. 2. He is also liable for such improbable consequences as are both proximate and natural. The crucial sentence in Judge Wardlaw's definition of "proximate" is: "Such nearness in the order of events, and closeness in the relation of cause and effect, must subsist, that the influence of the injurious act may predominate over that of other causes, and shall concur to produce the consequences, or may be traced in those causes. At p. 549. Judge Wardlaw's definition of "natural" is: "By this, I understand, not that they should be such as upon the calculation of chances would be found likely to occur, nor such as extreme prudence might anticipate, but only that they should be such as have actually ensued one from another, without the occurrence of any such extraordinary conjuncture of circumstances, or the intervention of any such extraordinary result, as that the usual course of nature should seem to have been departed from." At p. 549. In condensed form: Events occurring without extraordinary departure from the usual course of nature, though not reasonably to have been anticipated. For another definition of "natural and proximate," see Trenchard, J., in Smith v. Public Service Corporation, 78 N. J. L. 478, 480, 75 Atl. 937, 938 (1910). Both terms, "proximate" and "natural," are infelicitous. "Proximate" is often used as synonymous with "legal cause" (and might be understood as making nearness in time or space an essential element). "Natural" is frequently used in the sense of "probable." Neither term is used by Judge Wardlaw in these common significations. We differ from Judge Wardlaw in two respects: 1. We do not think that a defendant should always be exonerated where there was an extraordinary and unforeseeable departure from the usual course of nature. As to this point the opinion of the court in the representative case of Green-Wheeler Shoe Co. v. Chicago, R. I. & Pac. R. Co., 130 Ia. 123, 106 N. W. 498 (1906), seems preferable to the opinion in Rodgers v. Missouri Pac. Ry. Co., 75 Kan. 222, 88 Pac. 885 (1907). See, post, discussion in Appendix. 2. We do not think it essential that the defendant's act should predominate over other causes. (See, however, in support of Judge Wardlaw, Biggs, J., in Pierce v. Michel, It wil perhaps be admitted by some that our general rule is well enough as far as it goes; but it will be contended that it ought to go farther and give more minute and specific tests. Probably it will be chiefly objected to on the ground of vagueness. But the question of causative relation is in reality one of fact and degree; and all attempts hitherto made at laying down universal tests of a more definite and more specific nature have resulted in propounding rules which are demonstrably erroneous. "Four or five rules have been proposed, discussed, and found inadequate; all of them, in difficult cases, fail even to guide a jury, and no one has prevailed over the others." 42 "Several rules of liability have been prescribed, only to be shattered by novel accidents, thus demonstrating that the mind is unable to conjecture all the harmful results which may flow from a delinquent act and flow from it in such natural sequence that, on a presented case, it can be pronounced the wrongdoer was to blame."43 It is not believed that any minute and elaborate tests would "bear the strain of individual cases in the course of experience." The only way to prevent such tests from sometimes operating unjustly would be by giving an unnatural and forced construction to their language, or by creating arbitrary exceptions and qualifications. Is not this the difficulty with some definitions of legal cause (some statements of the requisites to the existence of causal relation), namely: That the framers of the definitions are aiming at "the ideal of a logical and methodical exactness" greater than the subject permits of ?44 60 Mo. App. 187, 191 (1895); 1 Sutherland, Damages, 3 ed., § 16.) The defendant's tort need not have "contributed" to the damage more largely than any other cause. It is enough if it substantially "contributed"; if it constituted one of the substantial factors in subjecting plaintiff to the damage. Suppose that damage results from the simultaneous concurrent acts of two independent wrongdoers; the tort of each having the same causative force as that of the other; i. e. each constituting one half of the compound cause. If the "predominant" test is insisted upon, how could either be held liable? Would not both escape? Moreover, would it not often be difficult to determine the question of predominance? "What among many essential causes can be said to predominate or be exclusively efficient?" See 9 Col. L. Rev. 144, note 23. 42 Professor Beale in 9 HARV. L. REV. 80. 42 Goode, J., in Lawrence v. Heidbreder Ice Co., 119 Mo. App. 316, 330, 93 S. W. 897, 900 (1906). 44 If exact definition is here found unattainable, this will not be the only legal topic |