imputes to the latter his own powers and abilities. The twelve jurors, by the time the verdict is ready to be handed in to the court, have convinced each other that each of them, had he been in the place of the defendant, could have foreseen or not foreseen the injury; and that, therefore, the defendant could and should have done the same thing. All that the juror can do, at the most, would be to place himself in the

come into your consciousness: 1. Crossing the Delaware; 2. The Revolutionary War. (b) Think of Lincoln for a few minutes and avoid thinking of: 1. Emancipation Proclamation; 2. Slavery; 3. Assassination; 4. Civil War. (c) Think of Caesar and negate: 1. Omnia Gallia, etc. ; 2. "Friends, Romans, Countrymen," etc. (d) Think of John L. Sullivan and negate: "Prize-fighter;" of Bob Fitzsimmons and negate: "Solar plexus

ing (ignoring, forgetting, blotting out), the existence of the injury, try by the use of imagination and conjecture to find the incoming of the intervening forces and the occurrence of the class of injuries to which the particular injury belonged. It would be a fruitless quest. For these reasons:

1. The juror does not know what he is hunting for. He cannot know, for at the time the defendant committed his act the injury was not in existence. You cannot foresee the existent. The very meaning of the word "foresee" (anticipate, predict, conjecture, guess) shows that the object or event that is foreseen is non-existent at the time it is foreseen. In order to be certain that he has foreseen this injury, the juror would have to foresee all the possible classes of injuries that there may be or could come into existence. This would take superhuman foresight and ought not to be expected of any ordinary man.

2. The preceding section assumes that the ordinary man, as represented by the juror, can negate the existence of the injury which has once been presented to his knowledge. But this assumption is a false one. For, when a fact that been impressed upon a man's consciousness; when he has been made vividly aware of the existence of an object or event; it is practically impossible for him to obliterate that impression in a short time and in many cases it is not possible at all. A few simple experiments will make this apparent.

(a) Think of George Washington for five minutes and do not allow these things to

padour hair." (e) Think of football and negate: 1. Touchdown. (f) Of the great war, and negate the Kaiser, the Fourteen Points, the League of Nations, "cooties,"

etc.

Many other examples could be given, but these will suffice. All of them show that when two things have been vividly connected they can seldom, if ever, be separated again in our thinking. This holds true of law courts, I take it, as of ordinary civil life. The jury for days, and sometimes weeks, have had the act and the injury presented to them as inevitably connected. The two are presented in close association. When they retire to consider their verdict, these two things are vividly in their minds. They can't, therefore, negate the injury and treat it as though it had never existed. Nor can they look at the act uninfluenced by the existence of the injury.

At this point it can be urged that the jury does not need to negate the injury; that, on the contrary, they are supposed to consider it as one of the factors in the case. To this I would reply that in such a case the doctrine of foresight is a misnomer. It should be called the doctrine of hindsight. The jury is practically told not to start with the act and see if it can work forward the injury through their imagination; but to start with the injury and to think their way back to the act if they can. if they can. Or, at the most, the jury may be told to work from both ends to the middle. And I venture to believe that the jury in fact does work, not by imaginative or cognitive conjecture, but by simple inspec

hurting a person are as follows:

If my analysis and belief are correct, and the jury really does look at the particular facts before it when it decides that a given act or omission was the proximate cause of an alleged injury, then it would be of considerable practical value if the law could be stated in such objective terms that the jury would have a working guide to aid them in their deliberations and help them reach their findings. Fortunately, the cases do yield such legal principles, though the courts, for some reason or other, have as yet not enunciated them, but seem to have preferred to use the formula "of natural and probable consequences" without question or really adequate examination. What, then, are these legal principles?

There are five general ways in which one person can injure another. These are:

1. By a direct application of force; 2. By acting in conjunction with a natural force; 3 By acting in conjunction with the act of an animal; 4. By acting in conjunction with the activity of the injured individual himself; 5. By acting in conjunction with the act of a third person.

By "in conjunction with" I mean both "at the same time" as the animal, force of nature, injured individual or third person, act, and "before" they act. That is, the activity of the force of nature, animal, etc., can be concurrent with the act of the person who is saddled with the liability or it may intervene between the act of that person and the injury to the hurt individual. The legal

1. A direct application of force is always a proximate cause of any injury that that force might produce. These cases show many ways in which A might apply an injurying force to B. For example. i. A might create or induce that which caused the injury. ii. A might create a conduit for a dangerous force along which the force that injured B traveled. iii. A might apply force to an object which forced another object to impinge upon B. iv. A might accel

erate the activity of a force or object that

hurt B." v. A might release a force that drives an object against B.10

2. When an act creates or an omission fails to change a situation, and that situation contributes, through, by means of, or in conjunction with, an intervening force to the injury of a person, that act or omission is the proximate cause of the injury. Examples of this are: i. A prevents B from going where he wishes and compels him to go elsewhere and in that place the force of nature hurts B.11 ii. A creates a situation or omits to change it so that a force of nature is permitted to hurt B.12 iii. A fails to

(6) State v. O'Brien, 81 Ia. 88; Armstrong v. Montgomery Street Railway Co., 123 Ala. 233; Gray v. Chicago & Northwestern Railway Co., 153 Wis. 637; Lynn Gas & Electric Co. v. Meriden Insurance Co., 158 Mass. 570; Bunting v. Hogsett, 139 Pa. 363; Smith v. London & Southwestern R. R. Co., L. R. 6 C. P. 14; Hoyt v. Jeffers, 30 Mich. 181. Ryan v. N. Y. Central R. R., 35 N. Y. 210, contra.

(7) Lynn Gas and Electric Co. v. Meriden Insurance Co., 158 Mass. 570; The G. R. Booth, 171 U. S. 450.

(8) Hill v. Winsor, 118 Mass. 251.

(9) McCahill V. New York Transportation Co.. 201 N. Y. 221.

(10) Rigdon v. Temple Water Works Co., 11 Tex. Civ. App. 542.

(11) Scott v. Hunter, 46 Pa. 1921; Derry v. Flinter, 118 Mass. 131; Fox v. Boston and Maine R. R. Co., 148 Mass. 220 (which case was decided on the ground of a special contract, however).

(12) Dickinson v. Boyle, 17 Pick. 78; Pittsburg v. Grier, 10 Harris 54; Jackson v. Wisconsin Telephone Co., 82 Wis. 243; Benedict Pineapple Co. v. The Atlantic Coast Line, 55 Fla. 514; The Lords Bailiff-Jurats of Romney Marsh v.

change a situation and a force issues from it to the hurt of B.13 iv. A deflects a natural force to the hurt of B.14

3. When an act or an omission compels or allows the control of an animal to be taken from the person who has such control, and that animal is injured, through its own acts or injures another animal or a person, that act or omission is a proximate cause of the injury. Examples of this are: i. A removes control of the animal from B and the animal is hurt.15 ii. A removes the control of the animal from B and the animal injures another.16

4. When an act induces the activity of a person and that activity contributes to the injury of the person or when an act creates a dangerous situation and a person is hurt by coming into contact with that situation through his own lawful activity, or when an omission fails to keep a person from coming into contact with a situation or force, and that situation or force contributes, in conjunction with the lawful activity of the person, to the injuring of that person, such an act or omission is the proximate cause of the injury. Examples of this are: i. A creates dangerous alternatives and compels or induces B to choose between

(14) (15) Sneeby v. Lancashire & Yorkshire Railway Co., L. R. 9 Q. B. 263; West v. Ward, 77 Ia. 322; Gilman v. Noyes, 57 N. H. 627, contra. (But it is based on the express point that the jury did not have a chance to say whether the injuring power, namely, wild bears, could have been anticipated or not.) Kelsey v. Rebuzzini, 80 Atl. Rep. 170, contra.

Cheever v. Danielly, 80 Ga. 114.

(16) McDonald v. Snelling, 14 All. 290; Belk v. People, 125 Ill. 584; Isham v. Dow, 70 Vt. 588; Towaliger Falls Power Co. v. Sims, 6 Ga. App.

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erty away from him and B is hurt in getting control back. ii. A induces a defensive act on the part of B.19 iv. A attracts B into a dangerous situation to the hurt of B.20 v. A creates a dangerous force which B fails to neutralize.21 vi. A creates a dangerous situation which deflects the activity of B against B.22 vii. A creates a dangerous situation and fails to keep B away from it.23 viii. A induces B to act.24 ix. A fails to prevent the activity of B.25

Before enunciating the legal principle which will help the jury to a decision in cases where acts of a third party have contributed in conjunction with the acts of the defendant to the injury of the plaintiff, I wish to indicate all the possible ways in which the defendant can utilize the third party to the hurt of the plaintiff. These ways are as follows: 1. A drives B into T; 2. A drives T into B; 3. A creates an active force and compels T to play it upon B; 4. A creates an active force and compels T to drive B into it; 5. A creates a situation and makes T drive B into it; 6. A creates a situation and T drives it against B; 7. A creates a situation and compels T to drive it

(17) Regina v. Pitts, 1 C. & M. 284; Jones v. Boyce, Stark 493; Tuttle v. Atlantic City R. R. Co., 66 N. J. L. 327; Illinois Central R. R. Co. v. Siler, 229 Ill. 390; Hendrickson V. Commonwealth. 85 Ky. 281; Chambers v. Carrol, 199 Pa. 371.

(18) Bennett v. Lockwood, 20 Wendell 223; Page v. Bucksport, 46 Mo. 56; Lowry v. Manhattan Railway Co., 99 N. Y. 158.

(19) Eckhardt v. Long Island R. R., 43 N. Y. 502; Lowry v. Manhattan Railway Co., 99 N. Y. 158.

(20) Harold v. Watney, 1898, 2 Q. B. 320. (21) Regina v. Holland, 2 Moody v. Robinson, 351; St. Louis and San Francisco R. R. Co. v. League, 71 Kan. 79.

(22) Rollins v. Central Maine Power Co., 88 Atl. Rep. 86; City of Louisville v. Hart, 142 Ky. 171.

(23) Burk v. Creamery Package Mfg. Co., 126 Ia. 730; Bell v.. Rocheford. 78 Neb. 310; Woodson v. Metropolitan Street Railway Co., 24 Mo. 685; Munsey v. Webb, 231 U. S. 150; Ehrgott v. Mayor of City of N. Y., 96 N. Y. 264.

(24) Rex v. DeMarny, 1907, 1 K. B. 388; People v. Lewis, 124 Cal. 551.

(25) A., T. & Santa Fe R. R. v. Parry, 67 Kan. 515.

against B; 8. A compels T to drive B into an active force not created by A; 9. A compels T to drive B into a situation not created by A; 10. A compels T to play an active force not created by A upon B; 11. A compels T to direct a situation not created by A against B.

All these ways of connecting the third party with the defendant and the plaintiff are found in the cases, and in analyzing the cases we find this legal principle which grows out of them.

5. If an act induces the activity of a person so that such activity contributes to the injury of another person, or if an act creates, or an omission permits, a situation so that the independent activity of a person compels a factor in that situation to impinge upon another person to his hurt, then that act or omission is the proximate cause of the injury. Examples of this are as given below: i. A puts T in danger and makes him hurt B.26 ii. A attracts T to hurt B. iii. A incites T to hurt B.28 iv. A creates a dangerous situation which T directs against B.29 v. A separates T from B.30 vi. A hurts B and T does not prevent the consequences of that hurt in whole or

(26) Quigley v. D. & H. Canal Co., 142 Pa. 388; Washington & Georgetown R. R. v. Hickey, 166 U. S. 521; Scott v. Shepherd, 2 Wm. Bl. 892; Ricker v. Freeman, 50 N. H. 420.

(27) Guille v. Swan, 19 Johns 381; Lane v. Atlantic Works, 111 Mass. 136. Cf. Glassey v. Worcester Consolidated Street Ry. Co., 185 Mass. 315, and Mangan v. Atterton, L. R. Ex. 239,

contra.

(28) Wise v. Dunning, 1902, 1 K. B. 167; Keaton v. State, 41 Tex. Cr. R. 621; Rex v. McDaniel, Leach 4th ed. 44; Cf., also, for the converse case where A was not held liable, Schoepflin v. Coffey, 162 N. Y. 12. The great weight of authority is with this decision.

(29) Regina v. Mitchell, 2 Moody 120; Johnson v. N. W. Tel. Exchange Co., 48 Minn. 453; Burrows v. March Gas Co., L. R. 5 Ex. 67; Quaker Oats Co. v. Grice, 195 Fed. 441; Watson v. Ky. and Ind. Bridge and R. R. Co., 137 Ky. 619; Chacey v. City of Fargo, 5 N. D. 173; Pastene v. Adams, 49 Cal. 87. Cf., contra, Stone v. Boston & Albany R. R. Co., 171 Mass. 536; Seith v. Commonwealth Electric Co., 241 Ill. 252.

(30) Regina v. Halliday, 61 Law Times Reports 701.

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in part.31 vii. A induces T to create a dangerous situation which hurts B. viii. A holds B in danger and compels T to hurt B.33 ix. A takes animals out of control of B and T drives them into danger.3 x. A releases a force that T deflects against B.35 xi. A deflects B into a danger created by T.36

D. Reasons for Imposing Liability.—In making the above analysis it was intended merely to show how liability arises. In conclusion, I wish to indicate why liability is imposed.

It is always a dangerous proceeding, to my mind, to make too general a rule if the rule is to be followed in practice as a guide for the determination of liability. The essence of generalizing is the ignoring of differences and the emphasizing of common elements in various situations. Yet the differences may be as important as the likenesses. But in the present case it is quite obvious that we would not be doing violence to the facts when we say that all of the cases given can be subsummed under three heads, as follows:

1. The application of a direct force by A upon B.

2. The application of a direct force. upon T by A so that T hurts B.

3. The creation of a situation by A, so that B, by his own acts or the acts of T, which acts of T are induced or not defended against by A, comes into contact with the situation and is hurt.

In the first case, where there has been a direct application of force, liability has nearly always been imposed. This is be

(31) Pullman Palace Car Co. v. Bluhm, 109 Ill. 20; Sauter v. N. Y. C. & H. R. R. Co., 66 N. Y. 50: Commonwealth v. Hackett, 2 All. 136; People v. Cook, 39 Mich. 236; Regina v. Davis, 15 Cox's C. C. 174, dicta.

(32) Dannehower v. Western Union Tel. Co.. 218 Pa. 216.

(33) Keaton v. State. 41 Tex. Cr. R. 21; Fottler v. Moseley. 179 Mass. 295; Southern Railway Co. v. Webb, 116 Mich. 425.

cause under modern conditions the law guarantees protection from unlawful aggression to every person who lives under the law. When the state took over the task of keeping the public peace, and so denied to an injured person the right to self-help, if that self-help injured the peace of the state, it took on the duty of seeing that men were propertly protected in their lawful pursuits. As Dean Pound says: "In civilized society men must be able to assume that others will commit no intentional aggressions upon them."37 A person who directly injures another must make redress for that injury, unless "he can justify his act under some social or public interest, or assert a privilege because of a countervailing individual interest of his own which there is a social or public interest in securing."38

The same reasons apply to the cases under the second head, for a man is justly held responsible for the agencies he employs, as well as for the things he does directly himself. There is no difference between the cases where a man strikes another himself and cases where he compels a third person to strike that other.

In the matter of the cases under the third head the ground for imposing liability is not so easily arrived at. Three types of cases can be found:

1. Here the defendant simply creates a situation and the plaintiff by his own acts comes into contact with it and is hurt. In these cases recovery is allowed.

2. Here the defendant creates a situation and the plaintiff is brought into contact with the situation by a third party with whom the defendant has no causal relation. In these cases the plaintiff cannot recover from the defendant for his injuries.

3. Here the defendant creates a situation and a factor in that situation is directed against the plaintiff by a third person with

whom the defendant has no causal relation. Here the plaintiff can recover for his injuries.30

According to Dean Pound, the reason why recovery would be allowed, if I am not misinterpreting the application of this statement, is that "in civilized society men must be able to assume that others, when they act affirmatively, will do so with due care with respect to consequences which may reasonably be anticipated. Professor Beale would say that the reason for imposing liability on the defendant is that the defendant "has created a risk," or has "subjected the plaintiff to a risk." That is, he has created a dangerous situation and must pay for injuries resulting from that dangerous sit

uation.

My difficulty with Dean Pound's reasoning is that it restates the doctrine of "foreseeableness" which I have examined at length before and discarded. My difficulty with Prof. Beale's explanation is that I cannot see why calling a situation dangerous or risky should be looked upon as a reason for imposing liability on the creator of the risk. As a matter of fact, it seems to be restating the doctrine of "foreseeableness," once again. A situation or act is dangerous and risky when the experience of society has been such injuries had followed most usually the creation of that situation or the doing of that act. This is a reason for saying that a thing is dangerous, but it is. not a reason for saying that liability should rest upon the creation of a danger. For, in the case of a situation, it is not a danger unless the person injured through his own acts comes into contact with the situation, or places himself in a position where factors in the situation can be directed against him. For example, the City of X puts down a board sidewalk and keeps it in bad repair,

(39) The case where the defendant creates a situation and then causes a third party to bring the situation into contact with the plaintiff, or to bring the plaintiff into contact with the situation, can be placed under the second head, supra, and need not be discussed under this head.