the act notwithstanding the risk they may ensue. The wilful wrongdoer is liable because he desires to do the harm; the negligent wrongdoer is liable because he does not sufficiently desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to the reply: "Perhaps you did not, but at all events you might have avoided it, if you had sufficiently desired to do so; and you are held liable not because you desired the mischief, but because you were careless and indifferent whether it ensued or not." Negligence, as so defined, is rightly treated as a form of "mens rea," standing side by side with wrongful intention as a formal ground of responsibility. Topic 2. Tests of Negligence; Limits of Responsibility (Proximate Cause, Probable Consequences, Reasonableness, etc.) 423. THOMAS AQUINAS (1225-1274). Summa Theologica. Pars prima, Questio XIV, Art. XIII (2d Rom. ed., 1894, vol. I, p. 141). "Quidquid est causa causae ut causae, est causa causati." Omnis conditionalis, cujus antecedens est necessarium absolute, consequens est necessarium absolute. . . Sed contra. . . . Ad primum, ergo dicendum, quod, licet causa suprema sit necessaria, tamen effectus potest esse contingens propter causam proximam contingentem. Sicut germinatio plantae est contingens propter causam proximam contingentem, licet motus solis, qui est causa prima, sit necessarius. Nec tamen sequitur, ut quidam dicunt, quod consequens sit necessarium absolute quia antecedens est causa remota consequentis, quod propter causam proximam contingens est. Sed hoc nihil est; esset enim conditionalis falsa, cujus antecedens esset causa remota necessaria et consequens effectus contingens; ut puta, si dicerem: Si sol movetur, herba germinabit. Ibid. Pars prima, secundae partis, Quaestio XX, Art. V (2d Rom. ed., vol. II, p. 177). "Utrum eventus sequens aliquid addat de Bonitate, vel Malitia ad exteriorem actum." Videtur, quod eventus sequens addat ad bonitatem vel malitiam actus. . . . Sed contra, Eventus sequens non facit actum malum, qui erat bonus, nec bonum, qui erat malus: puta si aliquis det eleemosynam pauperi, qua ille abutatur ad peccatum, nihil deperit ei, qui eleemosynam facit. Respondeo dicendum, quod eventus sequens aut est praecogitatus, aut non, si est praecogitatus, manifestum est, quod addit ad bonitatem vel malitiam actus: cum enim aliquis cogitat, quod ex opere suo multa mala possunt sequi, nec propter hoc dimittit, ex hoc apparet voluntas ejus esse magis inordinats. Si autem eventus sequens non sit praecogitatus, tunc distinguendum est; quia, si per se sequitur ex tali actu, et ut in pluribus, secundum hoc eventus sequens addit ad bonitatem, vel malitiam actus. Si vero per accidens, et ut in paucioribus, tunc eventus sequens non addit ad bonitatem vel ad malitiam actus; non enim datur judicium de re aliqua secundum illud quod est per accidens, sed solum secundum illud quod est per se. Ibid. Pars prima, secundae partis, Quaestio LXXIX, Art. I (2d Rom. ed., 1894, vol. II, p. 572). 3. Praeterea. Quidquid est causa causae, est causa effectus: sed Deus est causa liberi arbitrii, quod est causa peccati; ergo Deus est causa peccati. . . . Sed contra. . . . Ad tertium, dicendum, quod effectus causae mediae procedans ab ea, secundum quod subditur ordini causae primae, reducitur etiam in causam primam: sed si procedat a causa media, secundum quod exit ordinem causae primae, non reducitur in causam primam: sicut si minister faciat aliquid contra mandatum domini, hoc non reducitur in dominum, sicut in causam; et similiter peccatum, quod liberum arbitrium committit contra praeceptum Dei, non reducitur in Deum, sicut in causam. BARTOLUS DE ALFANIS (1314-1357). Commentaria (ed. 1562, Lib. IV, p. 103, Secunda super Infortiato). De Auro et Argento legato. Causa intelligitur de proxima et immediata, et etiam de remota et mediata hoc dicitur. Ego intelligo istud verum de causa mediata non multum. . . . Causa enim multum remota est magis occasio quam causa. JACOBUS CUJACIUS (1522-1590). Recitationes Solemnes. (Opera, ed. 1658, vol. V, p. 171). Codex, lib. II, tit. XXXI, lex 3. Quid vero vocat causam proximam actionis? Causa proxima actionis est, quae est peculiaris & propria actionis, Aristoteles lib. 8. Metaphysicorum cap. 4. tractans de prima causa: δεῖ δὲ τὰ ἐγγύτατα αίτια λέγειν. τίς ἡ ὕλη; μὴ πῦρ ἢ γῆν, ἀλλὰ τὴν ἴδιον. id est: Siquis quaesierit quae sit materia hominis, debet adferre proximam causam, non dicere materiam esse ignem, materiam esse terram: nam quae est propria, ea est proxima. . . . Sic etiamsi rem vindicationis huius causa quidem propria est legatum, ergo proxima causa communis est dominium; ergo haec est remota causa. J. E. J. MUELLER. Promptuarium Juris Novum (1733, vol. II, p. 428). Damnum. 6. Non tantum, qui damnum ipse intulit, sed et is, qui occasionem damni praestitit, non tantum immediatam et proximam, sed et mediatam et remotam, de illo resarciendo tenetur. 7. Quicunque occasionem praestat, ille damnum fecisse videtur et ad illud resarciendum tenetur, modo exinde sive in mediate et proxime, sive mediate damnum sequatur, ita vt causa per se ad damnum producendum apta et ordinata sit. . . . 15. Condemnatus ad damnum datum resarciendum illud resarcire non tenetur, quod non immediate ex facto ipsius, sed causa mere extrinseca et occasionali prouenit. J. J. BURLAMAQUI. Principles of Natural and Politic Law (Transl. Nugent. 3d ed. 1784. Vol. I, pp. 238, 241; Part I, c. III). Principle of Imputability. In.putation is properly therefore a judgment by which we declare, that a person being the author or moral cause of an action commanded or forbidden by the laws, the good or bad effects that result from this action, ought to be actually attributed to him; that he is consequently answerable for them, and as such is worthy of praise or blame, of recompence or punishment. . . . When we impute an action to a person, we render him, as has been already observed, answerable for the good or bad consequences of what he has done. From thence it follows, that in order to make a just imputation, there must be some necessary or accidental connection between the thing done or omitted, and the good or bad consequences of the action or omission; and besides, the agent must have had some knowledge of this connection, or at least he must have been able to have a probable foresight of the effects of his action. Otherwise the imputation cannot take place, as will appear by a few examples. A gunsmith sells arms to a man who has the appearance of a sensible, sedate person, and does not seem to have any bad design; and yet this man goes instantly to make an unjust attack on another person, and kills him. Here the gunsmith is not at all chargeable, having done nothing but what he had a right to do; and besides, he neither could nor ought to have foreseen what happened. But if a person carelessly leaves a pair of pistols charged on a table, in a place exposed to everybody, and a child insensible of the danger happens to wound or kill himself; the former is certainly answerable for the misfortune: by reason that it was a clear and immediate consequence of what he has done, and he could and ought to have forescen it.1 [The contrast of "proximate" and "remote" cause, as used by Aquinas, appears frequently elsewhere in the civilian jurists of A. D. 1300-1600; e. g. 421. Sir FRANCIS BACON. De Augmentis Scientiarum. (1623. Works, ed. Spedding, II, 267.) Book III, cap. IV. Necesse est, ut vera differentia harum sumatur ex natura causarum quas inquirunt. Itaque absque aliqua obscuritate aut circuitione, Physica est quae inquirit de Efficiente et Materia; Metaphysica quae de Forma et Fine. (Note by Mr. Ellis.) The classification of causes here referred to is Aristotle's. . . . In order to apprehend its nature, it is necessary to take the word “cause” in a wider signification than is ordinarily done. The "efficient" cause is that which acts; the "material" cause, that which is acted on; as when the fire melts wax, the former is the efficient, the latter the material cause of the effect produced. The "formal" cause is that which in the case of any object determines it to be that which it is, and is thus the cause of its various properties. . . . The "final" cause is that for the sake of which any effect takes place, whether the agent is or is not intelligent. Sir FRANCIS BACON. Maxims of the Law. (1596. Works, Spedding's ed., XIV, 189.) Regula I: "In jure non remota causa, sed proxima spectatur." It were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree. . . . This rule faileth in covinous acts, which though they be conveyed through many degrees and reaches, yet the law taketh heed to the corrupt beginning, and counteth all as one corrupt act. . . . In like manner, this rule holdeth not in criminal acts, except they have full interruption; because when the intention is matter of substance and that which the law doth principally behold, there the first motive will be principally regarded, and not the last impulsion. 425. GILMAN v. NOYES. (1856. 57 N. H. 627, 631; an action for the value of sheep killed by bears, the sheep having escaped from the pasture when the defendant let down the bars, and the bears having killed the sheep after they wandered away.) Ladd, J.: The verdict here settles (1) that the bars were left down by the defendant; (2) that the sheep escaped in consequence thereof; (3) that they would not otherwise have been killed. Was the defendant's act the proximate cause of the damage? . . . That one of them would not have happened but for the happening of some other, anterior in point of time, doubtless goes somewhat in the direction of establishing the relation of cause and effect between the two. But no rule of law as to remoteness can, as it seems to me, be based upon that one circumstance of relation alone, because the same thing may very likely be true with respect to many other antecedent events at the same time. The human powers are not sufficient to trace any event to all its causes, or to say that anything which happens would have happened just as it did but for the happening of myriads of other things more or less remote and apparently independent. The maxim of the schoolmen, "causa causantis, causa est causati," may be true, but it obviously leads into a labyrinth of refined and Bartolus (Secunda super Digesta Vetera, II, 11); id. (Prima ibid., I, 235); Zasius (Veteris Lecturae, de edendo, p. 258, ed. 1538). But in all these sources, and in those above quoted except Mueller and Burlamaqui, in the 1700's, it was applied to the "causa,” or ground or consideration, of a conveyance or contract, and not to a "damnum," or tortious consequence. In the classic Roman law, the phrase was never used; e. g. Dig. VIIII, 2, 30, 3 (a case under the Lex Aquilia), and Voet, Commentaries, ad loc. cit.; Vocabularium Jurisprudentiae Romanae, Vol. I, s. v. "Causa." In the modern Continental law, the idea is well understood, but not the phrase; e. g. Dernburg, Pandekten, Vol. II, § 45.] bewildering speculation whither the law cannot attempt to follow. This case furnishes an illustration. The jury say the sheep would not have been killed by bears but for their escape, and would not have escaped but for the bars being left down. But it is equally certain, without any finding of the jury, that they would not have been killed by bears if the bears had not been there to do the deed; and how many antecedent facts the presence of the bears may involve, each one of which bore a causative relation to the principal fact sufficiently intimate so that it may be said the latter would not have occurred but for the occurrence of the former, no man can say. Suppose the bears had been chased by a hunter, at any indefinite time before, whereby a direction was given to their wanderings which brought them into the neighborhood at this particular time; suppose they were repulsed the night before in an attack upon the bee-hives of some farmer in a distant settlement, and, to escape the stings of their vindictive pursuers, fled, with nothing but chance to direct their course, towards the spot where they met the sheep; suppose they were frightened that morning from their repast in a neighboring cornfield, and so brought to the place of the fatal encounter just at that particular point of time. Obviously, the number of events in the history not only of those individual bears, but of their progenitors clear back to the pair that, in instinctive obedience to the divine command, went in unto Noah in the ark, of which it may be said that but for this the sheep would not have been killed, is simply without limit. So the conduct of the sheep, both before and after their escape, opens a field for speculation equally profound and equally fruitless. It is easy to imagine a vast variety of circumstances, without which they would not have made their escape just at the time they did though the bars were down, or, having escaped, would not have taken the direction to bring them into the way of the bears just in season to be destroyed, as they were. Such a sea of speculation has neither shores nor bottom, and no such test can be adopted in drawing the uncertain line between consequences that are actionable and those which are not. Some aid in dealing with this question of remoteness in particular cases is furnished by Lord Bacon's rule, "In jure causa proxima, non remota spectatur," and other formulas of a like description, because they suggest some boundaries, though indistinct, to a wilderness that otherwise and perhaps in the nature of things, has no limit. 426. FLEMING v. BECK. (1864. 48 Pa. 309, 313.) Agnew, J.: In strict logic it may be said that he who is the cause of loss should be answerable for all the losses which flow from his causation. But in the practical workings of society, the law finds, in this as in a great variety of other matters, that the rule of logic is impracticable and unjust. The general conduct and the reflections of mankind are not founded upon nice casuistry. Things are thought and acted upon rather in a general way, than upon long, laborious, extended, and trained investigation. Among the masses of mankind, conclusions are generally the results of hasty and partial reflection. Their undertakings, therefore, must be construed in a view of these facts; otherwise they would often be run into a chain of consequence wholly foreign to their intentions. In the ordinary callings and business of life, failures are frequent. Few, indeed, always come up to a proper standard of performance, whether in relation to time, quality, degree, or kind. To visit upon them all the consequences of failure would set society upon edge, and fill the courts with useless and injurious litigation. It is impossible to compensate for all losses, and the law therefore aims at a just discrimination, which will impose upon the party causing them, the proportion of them that a proper view of his acts and the attending circumstances would dictate. 427. ATCHISON, TOPEKA, & SANTA FE R. Co. v. STANFORD. (1874. 12 Kans. 354, 375; an action for damage done by a fire which was started by sparks in two different places and spread nearly four miles over the prairie.) Valentine, J.: [The question] is whether or not the injury to the plaintiff is not too remote to constitute the basis of a cause of action. The plaintiff in error claims, under the maxim, "causa proxima, non remota, spectatur," that it is. . . . In the popular and ordinary sense the fire, however far it may go, is one continuous fire, the same fire, and is the proximate cause of all the injuries it may produce in its destructive march, whether it go one rod, or four miles. This may not be strictly the case in the philosophical sense. A spark drops and sets fire to the grass, an inch in circumference; this to another inch; this to another, and so on, ad infinitum. The spark is the cause of the burning of the first inch, the first inch of the second, the second of the third, and so on, ad infinitum. The spark falling within a rod of the railroad track is not, philosophically speaking, the proximate cause of the burning of the hay-rick thirty rods distant. It is the proximate cause of the burning of the first inch of grass only, and the remote cause of the burning of the hay-rick. . . . But this sense of proximate and remote causes and effects is not the one adopted and used by the Courts. The Courts use the terms in a broader and more comprehensive sense. The Courts really use the terms in their ordinary and popular sense. . . . In law proximate and remote causes and effects do not have reference to time, nor distance, nor merely to a succession of events, or to a succession of causes and effects. A wrongdoer is not merely responsible for the first result of his wrongful act, but he is also responsible for every succeeding injurious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural, and probable consequence of his wrongful act. He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting distinct and separate events, provided they all necessarily follow from the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequence could not have happened, then such injurious consequence must be deemed to be too remote to constitute the basis of a cause of action. 428. WINCHEL v. GOODYEAR. (1905. 126 Wis. 271, 105 N. W. 824, 827). WINSLOW, J.: The misconception which I fear is that they [i. e. certain cases cited] may be regarded as holding that there may be in the legal sense a first or an initial cause which is not the proximate cause; i. e., that there may be a first or initial cause, setting in motion a subsequent chain of events resulting finally in the injury, which is not the responsible cause, but that some subse quent event may come into the chain and become the proximate or responsible cause. This idea is erroneous. I do not think it can be reasonably gathered from |