us, or in the language of Bishop1 has " exhausted itself" like a spent cartridge, it can be followed no further. Any later combination of circumstances to which it may contribute in some degree is too remote from the defendant to be chargeable to him.2 Thus where A gave to B (an innocent party) poison to be administered to C, and B put the poison on a shelf in C's sick-room, where D found it and gave it to C, A is properly chargeable with the administration of it to C. But if B had thrown it on a dust-heap, where E a year afterward had found it and innocently administered it to C, the force of A's act would have been spent before E found the poison, and A would not have been chargeable with the administration to C. A drove B out of a house on a freezing night, and B was frozen; A is responsible only if his force was still active at the time of B's combination with the cold. If B might have found shelter elsewhere, A's act of thrusting B into the cold ceased to be an active agency in keeping him in it; if B chose to stay outside, A's connection with B's subsequent exposure is remote. A knocked B down and was about to renew the attack; B drew his dagger to defend himself; A, in his haste to kill B, stumbled, fell upon the dagger, and was killed. This was not homicide by B se defendendo; A alone was chargeable with his own death. The appellee, having succeeded in an appeal of robbery, alleged as an item of damage that he had been shut up in prison for a long time, by reason of the failure of the justices to deliver the jail at the proper time. But it was held that the long imprisonment was chargeable to the justices alone, not to the appellor; and the damages were not allowed."

1 Non-Contract Law, § 44.

2 Conceivably, of course, we might resolve every act of injury into its ultimate human forces, and charge each person who had set one of these forces in motion with his share of the act of injury. This would take us back to Adam in every case. Human knowledge is too small to perform such a task with justice, and time too short for the determination by this method of a single case. For their own protection, and for the security of the public at large, the courts refuse to go so far; beyond a certain point the operation of a force is called remote, and is disregarded. Fleming v. Beck, 48 Pa. 309, 313; Squire v. W. U. Tel. Co., 98 Mass. 232, 237.

See Reg. v. Michael, 2 Moo. C. C. 120, 9 C. & P. 356, Beale Cas. Crim. L. 378See also to the same effect Carter v. Towne, 103 Mass. 507, with which compare an earlier report of the same case, 98 Mass. 567.

4 Hendrickson v. Com., 85 Ky. 281, Beale Cas. Crim. L. 430.

5 44 E. 3, 44, pl. 55. See also Hilton's Case, 2 Lew. 214; Reg. v. West, 2 Cox C. C. 500; Reg. v. Bennett, Bell C. C. 1, 28 L. J. M. C. 27; Reg. v. Ledger, 2 F. & F. 857.

6 42 Ass. pl. 19.

5. If the defendant contributed to the act of injury, he should be proved responsible for it in law in one of the ways suggested by Professor Wigmore. (a) His responsibility may be proved by showing that he intended either the combination or the result. Thus, while A was negotiating trade with natives on the coast of Africa, B fired upon a boat-load of the natives, and thus broke off the trade. This, it was shown, was B's purpose; and he was held liable.1 So, in the case of poisoning just stated, the defendant was held liable for the administration of poison by D, since he intended that it should be administered, though by another.2 (b) Defendant's responsibility may be proved by showing that he acted at his peril. Thus, where a carrier deviates, he becomes absolutely responsible for the safety of the goods during deviation, and is liable for loss even by act of God. So where one stores water in a reservoir he is responsible for its action, wherever it goes, until its force has become exhausted. Where a landowner employed a competent builder to build him a house, and the builder, unknown to the owner, placed one wall of the house within the highway, the owner is guilty of obstructing the highway. (c) Defendant's responsibility may be proved by showing that he acted negligently; that is, that he might reasonably be required to guard against the combination because it was one in which possible danger lurked. This principle has nothing to do with a probable result; defendant need not have been able to foresee any particular result in order to be held negligent. It is the possibility of the act of injury which makes defendant liable. If the force he set in motion was such as to make reasonably possible such a combination of circumstances as did occur, was illegal, and resulted in harm, he is negligent in this

sense.

A master sent aloft a seaman whom he knew to be unfit, through illness, to go aloft; the man fell into the sea, and was drowned. The master is liable for the death. The master of a tug-boat struck with

1 Tarleton v. M'Gawley, Peake, 205. Lord Kenyon said (at p. 208): "Had this been an accidental thing, no action could have been maintained; but it is proved that the defendant had expressed an intention not to permit any to trade until a debt due from the natives to himself had been satisfied."

2 Reg. v. Michael, supra.

Davis v. Garrett, 6 Bing. 716.

Rylands v. Fletcher, L. R. 3 H. L. 330, Smith Cas. Torts, 316.

5 Wills, J., in Reg. v. Tolson, 23 Q. B. D. 168, 173, Beale Cas. Crim. L. 286, 288. 6 U. S. v. Freeman, 4 Mas. 505. This would, it would seem, still be true (in the absence of consent on the part of the seaman), though the master had provided such

his boat the fender of a bridge on which plaintiff was at work; the blow knocked out a brace between two piles, and the piles, coming together, crushed plaintiff between them. The master was liable, though the result of his act could not possibly have been foreseen.1

It is negligent to set going any force which according to the ordinary course of nature may bring about the act of injury. One so adjusts himself to the conditions in which he lives as to escape harm from the ordinary forces of nature; and a person who throws him out of adjustment with his surroundings is justly held responsible. Thus where an insurance company became responsible for a fire among electrical machinery, and the fire by melting a connecting wire caused a short circuit, which so increased the speed of the machines as to injure them, it was held that the company must pay for the loss. Where a vessel, having negligently been allowed to strike a shoal, was drifted by the tide against plaintiff's walls, the master was responsible for the collision.*

It is otherwise where an extraordinary operation of nature brings about the injury; there is no negligence in not anticipating it. So where a carrier delays the transportation of goods, which are thereupon overwhelmed by a flood, the carrier is not responsible for the loss caused by the flood.5

It is evident, however, that a voluntary human act cannot be treated like an act of nature. When an independent human act, subsequent to defendant's last voluntary act, forms one of the factors of the act of injury, the defendant cannot be held responsible on the ground of negligence unless he might have foreseen the other's act. But if he might have foreseen it, he ought to be responsible for the act of injury, even though the subsequent actor was also a voluntary wrong-doer, and was also liable.

means for rescuing the man, if he fell, that it seemed impossible that he could drown. The negligence consisted in allowing the contact of the seaman with the water, not in causing his death. See also Reg. v. Archer, 1 F. & F. 351.

1 Hill v. Winsor, 118 Mass. 251, Smith Cas. Torts, 48. Compare Reg. v. Horsey,

3 F. & F. 287; Reg. v. Serné, 16 Cox C. C. 311, Beale Cas. Crim. L. 465.

2 See a clear statement of the reason of this rule in Beven on Negligence, p. 73.

3 Lynn Gas & Electric Co. v. Meriden Ins. Co., 158 Mass. 570.

4 Romney Marsh v. Trinity House, L. R. 5 Ex. 204, 7 Ex. 247, Smith Cas. Torts, 1

5 Denny v. N. Y. Cent. R. R., 13 Gray, 481; Smith Cas. Torts, 16. But the rule first stated applies if the act of nature were to be anticipated, as a frost in winter. Fox v. B. & M. R. R., 148 Mass. 220.

6 Guille v. Swan, 19 Johns. 381; Lane v. Atlantic Works, 111 Mass. 136. This appears, perhaps, still more clearly when the two wrongful human acts are concurrent, though the principle is no doubt the same. Mathews v. Tramway Co. 60, L. T. Rep.

It is in connection with this principle that notice becomes important. A combination of circumstances which otherwise is most unlikely may be made probable by knowledge of the existence of unusual factors; and one to whom the existence of such factors was known might therefore be bound to guard against an injury for which otherwise he could not be held responsible. In the law of damages this principle is embodied in the so-called "rule in Hadley v. Baxendale." A striking case, in which notice was essential, is Com. v. Wing.2 Defendant was shooting wild fowl in a proper place, when he received notice that a girl in a neighboring house was in so peculiar a state of mind that she would be thrown into convulsions at the sound of a gun. Notwithstanding the notice he continued to shoot, and the girl was thrown into convulsions. Defendant was held guilty of a crime. Without notice, the only combination which defendant could foresee was that of the sound of his gun with a human being, a harmless and legal combination, which he need not guard against. After the notice, he could foresee the combination of the sound of his gun with a diseased mind, and he should have guarded against it.

The remote and the improbable, it must be admitted, are often difficult to distinguish; indeed, what is remote is often also improbable. From this has resulted a confusion of the principles excluding the one and the other. The courts have seldom sufficiently discriminated between them; as, indeed, for the purpose of deciding an individual case it is not usually necessary to do. But the rules are clearly distinct in origin, in reason, and in application, and much confusion in the cases would be avoided by distinguishing them in theory, if not in practice.

It does not fall within my purpose to discuss the time at which the mental state of the defendant must exist. A settlement of the problem will probably furnish a rule in cases of contributory negligence. It seems likely that in the case of torts the defendant's

47, Smith Cas. Torts, 91. But see Holmes, J., in Hayes v. Hyde Park, 153 Mass. 514. Of course the defendant would be responsible, as explained above, irrespective of negligence, if he intended the act of injury to result from the force he set in motion.

19 Ex. 341, 23 L. J. Ex. 179. The court held in that case that the damages recoverable for breach of contract" should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it."

29 Pick. 1, Beale Cas. Crim. L. 119.

responsibility depends upon his intention or his negligence at the 'ast moment when it was possible for him to control the force he had set in motion. If, however, a factor of the act of injury is defendant's breach of contract, it appears to be held that defendant's ability to foresee the combination must exist at the time the contract was made.1

F. H. Beale, Fr.

1 Gee v. L. & Y. Ry., 6 H. & N. 211; Booth v. Spuyten-Duyvil R. M. Co., 60 N. Y. 487.