bility for unintentional harm. Both of them seem to receive the implied assent of popular text-books, and neither of them is wanting in plausibility and the semblance of authority. The first is that of Austin, which is essentially the theory of a criminalist. According to him, the characteristic feature of law, properly so called, is a sanction of detriment threatened and imposed by the sovereign's commands. As the greater part of the law only makes a man civilly answerable for breaking it, Austin is compelled to regard the liability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows from this, according to the prevailing views of penal law, that such liability ought only to be based upon personal fault; and Austin accepts that conclusion, with its corollaries, one of which is that negligence means a state of the party's mind. . . . The other theory is directly opposed to the foregoing. It seems to be adopted by some of the greatest common-law authorities, and requires serious discussion before it can be set aside in favor of any third opinion which may be maintained. According to this view, broadly stated, under the common law a man acts at his peril. It may be held as a sort of set-off, that he is never liable for omissions except in consequence of some duty voluntarily undertaken. But the whole and sufficient ground for such liabilities as he does incur outside the last class is supposed to be that he has voluntarily acted, and that damage has ensued. If the act was voluntary, it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor. [This doctrine I will notice first, and afterwards the one first mentioned]. 1. The arguments for the doctrine under consideration are, for the most part, drawn from precedent, but it is sometimes supposed to be defensible as theoretically sound. Every man, it is said, has an absolute right to his person, and so forth, free from detriment at the hands of his neighbors. In the cases put, the plaintiff has done nothing; the defendant, on the other hand, has chosen to act. As between the two, the party whose voluntary conduct has caused the damage should suffer, rather than one who has had no share in producing it. . . . I will begin with an early and important case.2 It was trespass quare clausum. The defendant pleaded that he owned adjoining land upon which was a thorn hedge; that he cut the thorns, and that they, against his will (ipso invito), fell on the plaintiff's land, and the defendant went quickly upon the same, and took them, which was the trespass complained of. And on demurrer, judgment was given for the plaintiff. The plaintiff's counsel put cases which have been often repeated. One of them, Fairfax, said: "There is a diversity between an "Action against manufacturer by one not a purchaser." (M. L. R., III, 420, 494.) "Selling poison without label." (M. L. R., III, 590.) "Liability of manufacturer to third person for defects." (M. L. R., IV, 400.) ESSAYS AND CHAPTERS: C. B. Labatt, "Negligence in Relation to Privity of Contract." (L. Q. R., XVI, 168.) Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XIII, § 416, p. 413.] 1 Austin, Jurisprudence (3d ed.), 440 et seq., 474, 484, Lect. XX., XXIV., XXV. 2 Y. B. 6 Ed. IV, 7, pl. 18, A. D. 1466 (Thorn-Cutting Case); cf. Ames, Cases in Tort, 69, for a translation, which has been followed for the most part. act resulting in felony, and one resulting in trespass. . . . If one is cutting trees, and the boughs fall on a man and wound him, in this case he shall have an action of trespass, &c. And, also, sir, if one is shooting at butts, and his bow shakes in his hands, and kills a man, ipso invito, it is no felony, as has been said, &c.; but if he wounds one by shooting, he shall have a good action of trespass against him, and yet the shooting was unlawful, &c., and the wrong which the other receives was against his will, &c.; and so here, &c." Brian, another counsel, states the whole doctrine, and uses equally familiar illustrations. When one does a thing, he is bound to do it in such a way that by his act no prejudice or damage shall be done to, &c. "As if I am building a house, and when the timber is being put up, a piece of the timber falls on my neighbor's house and breaks his house, he shall have a good action, &c.; and yet the raising of the house was lawful, and the timber fell, me invito, &c. And so if one assaults me and I cannot escape, and I in self-defence lift my stick to strike him, and in lifting it hit a man who is behind me, in this case he shall have an action against me, yet my raising my stick was lawful in self-defence, and I hit him, me invito, &c.; and so here, &c. "Littleton, J., to the same intent, and if a man is damaged he ought to be recompensed. . . . If your cattle come on my land and eat my grass, notwithstanding you come freshly and drive them out, you ought to make amends for what your cattle have done, be it more or less. . . . Choke, C. J., to the same intent. . . As to what was said about their falling ipso invito, that is no plea, but he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out." Forty years later,' the Year Books report Rede, J., as adopting the argument of Fairfax in the last case. In trespass, he says, "the intent cannot be construed; but in felony it shall be. As when a man shoots at butts and kills a man, it is not felony, et il sera come n'avoit l'entent de luy tuer; and so of a tiler on a house who with a stone kills a man unwittingly, it is not felony. But when a man shoots at the butts and wounds a man, though it is against his will, he shall be called a trespasser against his intent." There is a series of later shooting cases, Weaver v. Ward, Dickinson v. Watson, and Underwood v. Hewson, followed by the Court of Appeals of New York in Castle v. Duryee, in which defences to the effect that the damage was done accidentally and by misfortune, and against the will of the defendant, were held insufficient. . . ... The above-mentioned instances of the stick and shooting at butts became standard illustrations; they are repeated by Sir Thomas Raymond, in Bessey v. Olliot, by Sir William Blackstone in the famous squib case, and by other judges, and have become familiar through the text-books. Sir T. Raymond, in the above case, also repeats the thought and almost the words of Littleton, J., which have been quoted, and says further: "In all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering." Sir William Blackstone also adopts a phrase from Dickenson v. Watson, 1 Y. B. 21 Hen. VII, 27, pl. 5, A. D. 1506, 2 Cf. Bract., fol. 136 b. But cf. Stat. of Gloucester, 6 Ed. 1. c. 9; Y. B. 2 Hen. IV. 18, pl. 8, by Thirning; Essays in Anglo-Saxon Law, 276. Hobart, 134, A. D. 1616 [post, No. 479]. Sir T. Jones, 205, A. D. 1682. 5 1 Strange, 596, A. D. 1723. 2 Keyes, 169, A. D. 1865. 7 Sir T. Raym. 467, A. D. 1682 [post, No. 477]. 8 Scott v. Shepherd, 2 Wm. Bl. 892, A. D. 1773 [ante, No. 10]. just cited: "Nothing but inevitable necessity" is a justification. So Lord Ellenborough, in Leame v. Bray:1 "If the injury were received from the personal act of another, it was deemed sufficient to make it trespass; " or, according to the more frequently quoted language of Grose, J., in the same case: "Looking into all the cases from the Year Book in the 21 H. VII. down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass." Further citations are deemed unnecessary. 2. In spite, however, of all the arguments which may be urged for the rule that a man acts at his peril, it has been rejected by very eminent Courts, even under the old forms of action. . . . Conciliating the attention of those who (contrary to most modern practitioners) still adhere to the strict doctrine, by reminding them once more that there are weighty decisions to be cited adverse to it, and that, if they have involved an innovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to prove that the change was politic, I think I may assert that a little reflection will show that it was required not only by policy, but by consistency. . . . The general principle of law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune. . . . The State might conceivably make itself a mutual insurance company against accidents, and distribute the burden of its citizens' mishaps among all its members. There might be a pension for paralytics, and State aid for those who suffered in person or estate from tempest or wild beasts. As between individuals, it might adopt the mutual insurance principle pro tanto, and divide damages when both were in fault, as in the "rusticum judicium" of the admiralty, or it might throw all loss upon the actor irrespective of fault. The State does none of these things, however, and the prevailing view is that its cumbrous and expensive machinery ought not to be set in motion unless some clear benefit is to be derived from disturbing the status quo. State interference is an evil, where it cannot be shown to be a good. Universal insurance, if desired, can be better and more cheaply accomplished by private enterprise. The undertaking to redistribute losses simply on the ground that they resulted from the defendant's act would not only be open to these objections, but (as it is hoped the preceding discussion has shown) to the still graver one of offending the sense of justice. Unless my act is of a nature to threaten others, unless under the circumstances a prudent man would have foreseen the possibility of harm, it is no more justifiable to make me indemnify my neighbor against the consequences, than to make me do the same thing if I had fallen upon him in a fit, or to compel me to insure him against lightning. The law [thus] does not in general hold a man liable for unintentional injury, unless he might and ought to have foreseen the danger, or, in other words, unless a man of ordinary intelligence and forethought would have been to blame for acting as he did. 3. The next question is, whether this vague test is all that the law has to say upon the matter, and the same question is another form, by whom this test is to be applied. Notwithstanding the fact that the grounds of legal liability are 1 3 East, 593. See, further, Coleridge's note to 3 Bl. Comm. 123; Saunders, Negligence, ch. 1, § 1; argument in Fletcher v. Rylands, 3 H. & C. 774, 783; Lord Cranworth, in s. c., L. R. 3 H. L. 330, 341. 2 [The Woodrop-Sims, post, Book III, No. 629.] moral to the extent above explained, it must be borne in mind that law only works within the sphere of the senses. If the external phenomena, the manifest acts and omissions, are such as it requires, it is wholly indifferent to the internal phenomena of conscience. A man may have as bad a heart as he chooses, if his conduct is within the rules. In other words, the standards of the law are external standards. . . . Again, any legal standard must, in theory, be one which would apply to all men, not especially excepted, under the same circumstances. . . . If now, the ordinary liabilities in tort arise from failure to comply with fixed and uniform standards of external conduct, which every man is presumed and required to know, it is obvious that it ought to be possible, sooner or later, to formulate these standards, at least to some extent, and that to do so must at least be the business of the Court. It is equally clear that the featureless generality, that the defendant was bound to use such care as a prudent man would do under the circumstances, ought to be continually giving place to the specific one that he was bound to use this or that precaution under these or those circumstances. The standard which the defendant was bound to come up to was a standard of specific acts or omissions, with reference to the specific circumstances in which he found himself. If in the whole department of unintentional wrongs the Courts arrived at no further utterance than the general principle of negligence, and left every case, without rudder or compass, to the jury, they would simply confess their inability to state a very large part of the law which they required the defendant to know, and would assert, by implication, that nothing could be learned by experience. But neither Courts nor Legislatures have ever stopped at that point. From the time of Alfred to the present day, statutes and decisions have busied themselves with defining the precautions to be taken in certain familiar cases; that is, with substituting for the vague test of the care exercised by a prudent man, a precise one of specific acts or omissions. . . . It will be observed that . . . the argument of this Lecture, although opposed to the doctrine that a man acts or exerts force at his peril, is by no means opposed to the doctrine that he does certain particular acts at his peril. It is the coarseness, not the nature, of the standard which is objected to. If, when the question of the defendant's negligence is left to the jury, negligence does not mean the actual state of the defendant's mind, but a failure to act as a prudent man of average intelligence would have done, he is required to conform to an objective standard at his peril, even in that case. When a more exact and specific rule has been arrived at, he must obey that rule at his peril to the same extent. . . . Some examples of the process of specification will be useful. . . . The rule of the road and the sailing rules adopted by Congress from England are modern examples of such statutes. By the former rule, the question has been narrowed from the vague one, Was the party negligent? to the precise one, Was he on the right or left of the road? . . . Another example may perhaps be found in the shape which has been given in modern times to the liability for animals, and in the derivative principle of Rylands v. Fletcher,' that when a person brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, he must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. Cases of this sort do not stand on the notion that it is wrong to keep cattle, or to have a reservoir of water. . . . It may be considered that the safest way to secure care is to throw the risk upon the person who decides what precautions shall be taken. . . . 1 L. R. 3 H. L. 330, 339 [post No. 590]. I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it. For instance, experience shows that a good many guns supposed to be unloaded go off and hurt people. The ordinary intelligent and prudent member of the community would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd, and pulling the trigger, although it was said to be unloaded. Hence, it may very properly be held that a man who does such a thing does it at his peril, and that, if damage ensues, he is answerable for it. . . . Another case of conduct which is at the risk of the party without further knowledge than it necessarily imports, is the keeping of a tiger or bear, or other animals of a species commonly known to be ferocious. If such an animal escapes and does damage, the owner is liable simply on proof that he kept it. . . . Experience has shown that tigers and bears are alert to find means of escape, and that, if they escape, they are very certain to do harm of a serious nature. The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community. ... 476. HENRY SIDGWICK. Elements of Politics. (1891. Chap. VIII, § 2, pp. 110-112.) Let us observe that blameworthiness, in some degree, is normally characteristic of mischief for which reparation ought to be legally enforced as well as of that for which punishment is inflicted as punishment. This is not, perhaps, clear at first sight; it may be thought that the need of reparation arises from the mere fact that mischief, such as law aims at preventing, has been inflicted by A on B, without any consideration of the blameworthiness of A; that if A has caused, even quite accidentally, a loss of utility which must ultimately fali on somebody, it is more reasonable that the burden of the loss should be borne by A, who did in a physical sense act, than by B, who is innocent of any action whatever. But reflection will, I think, show that, from a utilitarian point of view, it would be wrong to hold men responsible for all results to which they physically contributed, however impossible it may have been to foresee such results. It is fundamentally important for the general happiness of any society that its members should be acting strenuously and energetically in some way or other; and it would too seriously interfere with this to lay down the broad rule "that every man acts at his peril" and is responsible for any mischief that may result. I hold, therefore, that damages for unintentional mischief should only be legally enforced, as a general rule, when the man who has physically caused the mischief has not taken due and proper care: i. e., has not taken such care as would be taken by an ordinary person desirous of avoiding injury to others, as completely as this can be done without serious interference with his normal functions supposing that his normal industry is not ordinarily dangerous. In this latter case special care may reasonably be required. The line, of course, is a difficult one to draw exactly: it must to a great extent be left to be decided by common sense and experience applied to particular circumstances. As will be seen from the language that I have just used, I by no means assume that in every case where a man was rightly held legally responsible for the consequences of his act, there was something morally blameworthy in the state of mind that preceded the act in question. As Mr. Holmes says: "The law considers what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that: if a man is born |