the sole cause of complaint; if the plaintiff's own conduct made part of the cause of action, he cannot recover.

In such a case the defendant has violated no duty to the plaintiff, whatever duty he may have owed; it is the plaintiff and the defendant together who have done or omitted the thing complained of. And whatever might be said in favor of separating the conduct of the defendant from that of the plaintiff, where the plaintiff's conduct was not the sole cause of the injury, the courts generally have looked upon it as unwise, if not impracticable, to attempt to administer the law in that way.1

The courts, however, are very careful to distinguish mere conditions from legal causes.2 In a certain sense of the word 'cause,' as used by able metaphysicians, the plaintiff cannot but be part at least of the cause of his misfortune, for unless he or his property was where he or it was at the time in question, no harm could have befallen him, and that of course whether his own conduct in the matter was wrongful or not. But that is not the conception of cause which the courts have adopted; the courts distinguish, as was just stated, between things or situations which are but conditions necessary to the happening of any misfortune, and things or situations which in themselves have the promise or potency of misfortune. A result is, legally speaking, caused when it happens as the natural effect of that which brings it to pass; the case is this, that standing with knowledge or what should be accounted knowledge of certain facts, harm is likely to follow in natural course. Hence there

1 A few courts have, in cases of negligence, adopted a suggestion of admiralty law, and resorted to a comparison of fault between the plaintiff and defendant, rejecting the doctrine of contributory fault. See post, p. 375.

2 See e. g. Newcomb v. Boston Protective Department, 146 Mass. 596; Cases, 557.

can be no breach of duty by the defendant when, in such a case, the plaintiff himself does or omits to do the thing which, though in necessary connection with the defendant's misconduct, is likely to produce the harm.

On the other hand, if what the plaintiff has done or omitted was not likely to produce the harm, or any harm at all, his doing or omitting is no more than a condition to the result, and the defendant has violated his duty to the plaintiff. He alone, considering none but the plaintiff and the defendant, has caused the damage.1

The doctrine in question is obviously a general one, applying to all torts. As a matter of fact, however, it is seldom called into service except in cases of negligence; there almost exclusively it has found its development, and there it has special phases that will require particular examination when the subject of negligence is reached. The reader is accordingly referred to the chapter on Negligence for further information.2

§ 6. OF TERMINATION OF LIABILITY.

Liability for tort having been incurred, how far does. it extend? For it is obvious that a train of unfortunate results may follow. The general answer to the question, though scarcely an answer at all until explained, is that a man is liable for all such consequences of his torts as, legally speaking, he has caused. This answer is often put in terms of a maxim or rule of the Roman law, adopted into our jurisprudence; 'causa proxima, non remota, spectatur,' the law regards the 'proximate,' not the remote' cause.

With reference to this maxim, nothing could be more

1 The case is often treated as a phase of the maxim 'causa proxima, non remota, spectatur,' considered in the next section.

2 See also L. C. Torts, 721-725.

misleading than to take it in its plain primary sense; in that sense the law as often regards the 'remote' and disregards the proximate cause, as it does the contrary. A tosses a lighted squib into one of the booths of a market, and B, the owner of the booth, instinctively throws it out and it falls into the booth of C, who repeats the instinctive act, but now the squib strikes D in the face and puts out his eye. C obviously is nearest, or 'proximate' in the primary sense, to D, and A is most 'remote ' of all; and yet A is liable to D, and C probably is not; A is liable whether C is or is not, supposing that C has acted instinctively and not of purpose, negligence, or other wrongful conduct, towards D.1 It is obvious that the maxim is to be taken in some metaphysical sense; B and C must be regarded as machines, and the final result as happening in the natural course of things.

'Results happening in the natural course of things' is the more common way of putting the case; a tort having been committed, the wrongdoer is liable for whatever happens in the natural course; in the natural course of things as they were understood to be when the tort was committed. The rule does not mean, broadly, that liability extends to whatever occurs in the course of nature; it means what occurs in the course of nature as things were known when the wrong was first done. Thus a person who, in violation of law, should start a fire in the highway would be liable for damage done by any spread of the fire in the condition of the atmosphere when the fire was started, or while it was still under control; but not perhaps for damage produced by a hurricane or tempest suddenly and unexpectedly arising.2

On the other hand, it is not necessary that the particular mischief resulting should have been foreseen or

1 Scott v. Shepherd, 2 W. Black. 892.

2 Post, p. 376; Wharton, Negligence, §§ 114-116, 2d ed.

regarded as probable. A person who sets a fire wrong. fully, or does not properly guard a fire which he sets, in a dry stubble in midsummer, is liable for damage done by its spread, under the observable conditions of the air at first prevailing, even in case the fire should unexpectedly cross broad fields and extend to buildings or haystacks beyond.1 In like manner one who wrongfully sets a fire or unlawfully allows the fire to get under way among timbers floating down a stream, the burning timbers finally causing the destruction of property several miles below, is liable for the loss; he has in the legal sense caused the loss, however improbable it may have been, because it happened in the natural course of things understood. So again one who unlawfully strikes another will be liable for what ensues naturally from the known state of things in the person struck, though the result appears to be out of proportion to the blow,2 though probably not for consequences due, with the blow, to some occult and unknown disease.

8

It is enough in all such cases that the wrongdoer knows, or is bound to know from the facts of which he is aware, that harm will follow, or is likely to follow, his wrongful act or omission in the understood state of things. The conditions to the harm which follows are before him; danger is observable. This is again returning to language used in speaking of duty, and accordingly suggests that the present doctrine also may

1 Smith v. Southwestern Ry. Co., L. R. 5 C. P. 98; 6 C. P. 14 (Ex. Ch.).

2 See Stewart v. Ripon, 38 Wis. 584.

3 Compare Stewart v. Ripon, supra; Sharp v. Powell, L. R. 7 C. P. 258. For other cases involving the general principle, see Vandenburgh v. Truax, 4 Denio, 464; McDonald v. Snelling, 14 Allen, 290 (defendant negligently running into a team and causing the horses to run away and collide with plaintiff's sleigh); Farrant v. Barnes, 11 C. B.

N. s. 553.

be put in terms of duty. Duty exists where danger, either directly or through facts which the defendant knows or ought to know, is observable. It must follow that duty lasts to, and includes all results flowing naturally from the defendant's wrongful act or omission; duty equally must end at, and exclude, results which happen out of natural course, as things were known to exist. And liability must end where duty ends; the plaintiff can have no right towards which there is no correlative duty. The doctrine of duty then, rightly understood, determines both the creation and the termination of liability.

There is, or may be, special difficulty where the train of events instead of going on in nature, or through human beings acting mechanically, extends through the acts of men conducting themselves freely and without constraint. In such cases it appears to be necessary that the intermediate human agencies should act in accordance with the purpose of the one further back who set the train in motion. The connection between the sufferer and such person would be broken, if some one, or some force of nature, between them were to act in the matter out of course,' that is, in a way not to be expected; the wrongdoer can owe no duty to a person who sustains damage from the wrong, unless in natural or expected course.1

But if the intermediate persons, few or many, act in accordance with the purpose of the one back of them, though they be not his agents or his servants, he will be liable for damage done, not because the acts of the intermediate persons are his acts, but because he has, legally speaking, caused the damage. He owed a duty to the person who should ultimately fulfil his purpose;

1 See such cases as Carter v. Towne, 103 Mass. 507; Davidson v Nichols, 11 Allen, 514; Insurance Co. v. Tweed, 7 Wall. 44, 52.