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defendant could be fairly expected to anticipate as likely to ensue from his act, is in my judgment too remote. Rule discharged.

432. SMITH V. LONDON & SOUTHWESTERN RAILWAY COMPANY. (1870. L. R. 6 C. P. 14, 21.) Blackburn, J.: If the negligence were once established, it would be no answer that it did much more damage than was expected. If a man fires a gun across a road where he may reasonably anticipate that persons will be passing, and hits some one, he is guilty of negligence, and liable for the injury he has caused; but if he fires in his own wood, where he cannot reasonably anticipate that any one will be, he is not liable to any one whom he shoots; which shews that what a person may reasonably anticipate is important in considering whether he has been negligent. But if a person fires across a road when it is dangerous to do so and kills a man who is in the receipt of a large income, he will be liable for the whole damage, however great, that may have resulted to his family, and cannot set up that he could not have reasonably expected to have injured any one but a laborer.

433. HILL v. WINSOR

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1875

118 Mass. 251

Ar the trial of an action of tort for personal injuries sustained in consequence of the defendant's steam-tug striking the fender of a bridge on which the plaintiff was at work, the plaintiff's evidence tended to show that the fender, which was built to protect the bridge, consisted of piles driven perpendicularly into the bed of a stream about twelve feet apart, with other piles driven at an angle to each of these, one of which was fastened to the top of each perpendicular pile, with a cap on top extending along the whole row of piles. That the plaintiff was at work standing on a plank nailed to the piles, and, in order to fit an inclined pile to the perpendicular one and the cap, he had put in a brace about a foot long to keep the inclined pile and the upright one apart while he was at work; that, while so at work, he saw the tug coming towards the fender, and tried to get on the cap, when the tug struck the fender some distance from him, and the jar caused the brace between the piles to fall out, the piles came together, and he was caught between them and severely injured. The defendants' evidence tended to show that the plaintiff was not seen by those on the tug until after the accident, though other men at work on the fender were seen.

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The defendants requested the judge to rule as follows: . . . 8. If the defendants' agents, as prudent and reasonable men, had no reason to suppose that the moving of the boat along the fender would cause any danger to the workmen, then there was no negligence on their part in using the fender. The judge refused to give the instructions

as prayed for, but gave the following instructions: . . . The accident must be caused by the negligent act of the defendants. But it is not necessary that the consequences of the negligent act of the defendants should be foreseen by the defendants. It is not necessary that either the plaintiff or the defendants should be able to foresee the consequences of the negligence of the defendants in order to make the defendants liable. It may be a negligent act of mine in leaving something in the highway. It may cause a man to fall and break his leg or arm, and I may not be able to foresee one or the other. Still, it is negligence for me to put this obstruction in the highway, and that may be the natural and necessary cause. In this case, it is for the jury to say whether this injury, which the plaintiff suffered, was a natural and necessary consequence of the negligence of the defendants, if they were negligent.

The jury found for the plaintiff; and the defendants alleged exceptions to the foregoing refusals to rule.

O. W. Holmes, Jr., and W. A. Munroe, for the defendants.
E. H. Derby and W. C. Williamson, for the plaintiff.

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COLT, J. Under the instructions given in the present case, the jury must have found that the injury of the plaintiff was . . . due solely to the defendants' negligence. The evidence reported justifies these findings. The structure upon which the plaintiff was at work was imperfect and out of repair. Its condition at the time, the plaintiff's exposed position upon it, and the knowledge of that exposure which those in charge of the boat had, or in the exercise of due care might have had, were elements affecting the question of the defendants' negligence to which the attention of the jury was especially called. It cannot

be said, as matter of law, that the jury might not properly find it. obviously probable that injury in some form would be caused to those who were at work on the fender by the act of the defendants in running against it. This constitutes negligence; and it is not necessary that injury in the precise form in which it in fact resulted should have been foreseen. It is enough that it now appears to have been a natural and probable consequence. Lane v. Atlantic Works, 111 Mass. 136, and cases cited. Exceptions overruled.

434. BROWN v. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY. (1882. 54 Wis. 342, 356.) Taylor, J. (citing Hill v. Winsor with approval): He who commits a trespass must be held to contemplate all the damage which may legitimately flow from his illegal act, whether he may have foreseen them or not; and so far as it is plainly traceable, he must make compensation for it. The justice and propriety of this rule are manifest, when applied to cases of direct injury to the person. If one man strike another, with a weapon or with his hand, he is clearly liable for all the direct injury the party struck sustains therefrom. The fact that the result of the blow is unexpected and unusual can make no difference. If the wrongdoer should in fact intend but slight injury, and deal a blow which in ninety-nine cases in a hundred would result in a trifling injury,

and yet by accident produce a very grave one to the person receiving it, owing either to the state of health or other accidental circumstances of the party, such fact would not relieve the wrongdoer from the consequence of his act. The real question in these cases is, Did the wrongful act produce the injury complained of? and not whether the party committing the act could have anticipated the result. The fact that the act of the party giving the blow is unlawful renders him liable for all its direct evil consequences. This was the substance of the decision in the old and often cited squib case of Scott v. Shepherd, 2 W. Bl. 892. Justice Nares there says that, "the act of throwing the squib being unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate." 1

435. WALBRIDGE v. WALBRIDGE

SUPREME COURT OF KANSAS. 1909

80 Kan. 567, 103 Pac. 89

ERROR from District Court, Jefferson County; MARSHAL GEPHART, Judge. Action by Christian Walbridge against J. M. Walbridge. Judgment for plaintiff, and defendant brings error. Affirmed.

Morse & Keeler, for plaintiff in error. Phinney & Raines and D. D. Stanley, for defendant in error.

PORTER, J. Christian Walbridge sued J. M. Walbridge to recover damages for assault and battery. The petition alleged that he struck her a blow with his fist which destroyed the sight of one of her eyes. Defendant answered, admitting that he struck the plaintiff, but claimed that she first assaulted him, and that he acted in self-defence, and had no deliberate intention of doing her physical injury. The reply was a general denial. . . . He testified that he had no intention of inflicting any permanent injury on the plaintiff, and that he struck her solely to prevent her from assaulting him. The undisputed evidence is that the plaintiff suffered a permanent injury in the loss of one eye.

1 [Bernhard Windscheid. "Lehrbuch des Pandektenrechts" (9th ed., by Kipp, 1906, p. 61). § 263, note 14. Reparation of Damage. Whether one is liable at all, and what the extent of liability is, are questions not to be confused. Whether one is liable by reason of a certain act may well depend on whether its consequences were capable of being foreseen or not. But otherwise, when the question is to what extent he is liable for the consequences of an act which in any event makes him liable for something. (Editor's Note.) The foregoing does not seem to me the correct way of stating the doctrine. If a person is liable for a culpable act, it cannot be maintained that because his act is in general a culpable one, therefore he is liable for all its consequences, regardless whether a specific consequence was foreseeable or not. Rather should we inquire, as to each specific consequence, whether he is culpable as to that, i. e. whether it was a consequence which he could and should have foreseen and avoided by different action. For example: A hunter's gun goes off by his negligence, and injures a hunting companion; he is liable. But if at the same time a part of the charge struck some one else concealed in the underbrush, then he is liable only if he could have anticipated the presence of some one at that place.]

The jury found in her favor and gave her damages in the sum of $1000. A new trial was refused, and the defendant brings the case here for review.

The only error claimed is that the Court refused to give certain instructions. In two of them, the Court was asked to instruct that, if the blow complained of was given in self-defence, the defendant was not answerable for any unforeseen or unexpected damages resulting therefrom. . . . The defendant has no cause to complain. The question is not what the defendant intended, but what were the natural, proximate, or probable consequences of his wrongful act. . . . The act of the defendant in assaulting the plaintiff was unlawful, and he is answerable for all injuries which are the natural or probable consequence of his act without regard to his intent. Sloan v. Edwards, 61 Md. 89; Vosburg v. Putney, 80 Wis. 523; Morgan . Kendall, 124 Ind. 454; Hodges v. Nance, 1 Swan (Tenn.) 57; Yeager v. Berry, 82 Mo. App. 534. In Sloan v. Edwards, supra, which was an action for damages for assault and battery, it is said:

"It is a well-settled principle that the damages recoverable in actions for personal injuries must be the natural and proximate consequence of the act complained of. Therefore, whatever injurious consequences result naturally from the wrongful act done become elements of damage, and it is not necessary that the particular form or nature of the results should have been contemplated or foreseen by the wrongdoer."

The judgment will be affirmed. All the Justices concurring.1

Topic 3. Judge and Jury

436. A. J. WILLARD. Principles of the Law: Personal Rights. (1882, c. 26, in part; pp. 236, 254.) It becomes important to fix, as nearly as possible, the legal idea of cause and effect as existing between an act wrongfully performed and certain physical consequences of an injurious character attributable to such act. In the present state of legal development this can only be accomplished approximately. . . . Instances of this class are seldom placed in a position for exhaustive judicial examination. They are placed by the law peculiarly within the province of a jury. Judges seldom employ any but very general propositions in instructing juries as to the means of connecting a wrong with the various physical consequences flowing from it. . . . The institution of jury, as a means of solving such problems in their most complex form, has obviated the necessity 1 [TOPIC 2. NOTES:

"Negligence cases: Reasonable anticipation rule, criticised." VIII, 656.)

"Liability for unusual consequences." (H. L. R., X, 252.)
"Liability for remote consequences." (H. L. R., XIII, 149.)

(C. L. R.,

"Precise form of damages suffered unforeseeable." (H. L. R., XIV, 377.) "Liability for unforeseeable consequences of defendant's unlawful act." (H. L. R., XV, 225.)

"Personal injuries; elements considered in estimating damages." (Y. L. J., XIX, 124.)]

of drawing out the principles of the law to that nicety and minuteness that would be necessary if the judges were required to give an exact account of the principles on which the extent of damages was to be ascertained, and which would not add to the value of the law as a practical system. . . .

437. OLIVER Wendell Holmes, Jr. The Common Law. (1881, pp. 115–129, in part.) The distinctions between the functions of Court and jury does not come in question until the parties differ as to the standard of conduct. Negligence, like ownership, is a complex conception. . . . The judge's duties are not at an end when the question of negligence is reached. . . . No doubt, as has been said above, the averment that the defendant has been guilty of negligence is a complex one: first, that he has done or omitted certain things; second, that his alleged conduct does not come up to the legal standard. And so long

as the controversy is simply on the first half, the whole complex averment is plain matter for the jury. . . . But when a controversy arises on the second half, . . . when a case arises in which the standard of conduct, pure and simple, is submitted to the jury, the explanation is plain. It is that the Court, not entertaining any clear views of public policy applicable to the matter, further feels that it is not itself possessed of sufficient practical experience to lay down the rule intelligently. It conceives that twelve men taken from the practical part of the community can aid its judgment. Therefore it aids its conscience by taking the opinion of the jury. . . .

It has often been said, that negligence is pure matter of fact, or that, after the Court has declared the evidence to be such that negligence may be inferred from it, the jury are always to decide whether the inference shall be drawn. But it is believed that the Courts, when they lay down this broad proposition, are thinking of cases where the conduct to be passed upon is not proved directly, and the main or only question is what that conduct was, not what standard shall be applied to it after it is established. Most cases which go to the jury on a ruling that there is evidence from which they may find negligence, do not go to them principally on account of a doubt as to the standard, but of a doubt as to the conduct. . . . So, in the case of a barrel falling from a warehouse window, it must be found that the defendant or his servants were in charge of it, before any question of standard can arise.2. . .

It becomes of vital importance to understand that, when standards of conduct are left to the jury, it is a temporary surrender of a judicial function which may be resumed at any moment in any case when the Court feels competent to do so. . . . The Courts have been very slow to withdraw questions of negligence from the jury. . . . If the whole evidence in the case was that a party, in full command of his senses and intellect, stood on a railway track, looking at an approaching engine until it ran him down, no judge would leave it to the jury to say whether the conduct was prudent. If the whole evidence was that he attempted to cross a level track, which was visible for half a mile each way, and on which no engine was in sight, no Court would allow a jury to find negligence. Between those extremes are cases which would go to the jury. But it is obvious that the limit of safety in such cases, supposing no further elements present, could be determined almost to a foot by mathematical calculation. The trouble with many cases of negligence is, that they are of a kind not frequently recurring, so as to enable any given judge to profit by long experience with juries to lay 1 Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193, 197. Byrne v. Boadle, 2 H. & C. 722.

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