Page:Harvard Law Review Volume 5.djvu/109

93 THE LAW SCHOOL, 93 edition, 401). The doctrine of legal cause has itself been the subject of much discussion, and there is still some diversity of opinion on the ques- tion. There are, in general, to be found in the books three theories of causation. 1. The doctrine that the defendant is liable if the injury would not have happened but for his acts. This view, however, is clearly wrong. It involves a too extended liability, for it takes no account of any possible intervening responsible agent or efficient cause. 2. The doctrine that the defendant is liable only for such consequences as a reasonable man would have foreseen. This view is as much too narrow as the former was too broad. Where a man has been guilty of a wilful wrong act, he is liable for all the consequences which result from that act, whether he foresaw them or not. Liability attaches to a negligent act only when damage ensues. But when damage does ensue, the act itself becomes wrongful, and no good reason can be given why liability for damage should be limited to " reason- able and probable " consequences, and not be extended to all conse- quences which actually do result from the act without the intervention of any responsible agent or efficient cause. 3. The doctrine which attaches the liability to the last human wrongdoer in the chain of antecedents, and holds him responsible for all the consequences of his act, within the limits suggested by Mr. Bishop in his work on Non-Contract Law, where the act may so far have spent its force that it may no longer reasonably be con- sidered as the responsible cause of any result. This last is the sounder view on principle. In jure non remota causa sed proxima spectator." What was the proximate cause, whether the act of the defendant was the proximate cause of the injury, are questions of fact to be settled by the jury, under proper instruction from the court. Apply this now to the ques- tion under consideration. In contributory negligence, the plaintiffs fault and the defendant's fault are both among the antecedents in the chain of causation. In general, no liability in tort attaches to mere "sins of omis- sion," unless some prior act of the party, in creating a situation dangerous to others, has imposed upon him a duty of action. The plaintiff's fault, then, must either (1) precede, (2) be concurrent with, or (3) follow the defendant's wrongful act. If the plaintiffs fault preceded the defendant's wrongful act, then the defendant was the last responsible human wrong- doer, and the defendant is liable because his act was (and the plaintiffs was not) the responsible legal cause of the damage. If the plaintiffs wrongful act and the defendant's wrongful act are simultaneous and con- current, the plaintiff cannot recover, because his own act is part of the responsible legal cause of the damage. If the plaintiffs wrongful act fol- lows the defendant's wrongful act, then, as the plaintiff is the last respon- sible human wrong-doer, he will be barred from recovery ; and this not because his wrongful act " contributed " with the defendant's act to pro- duce the damage, but because his own act was the sole responsible legal cause of the damage. In order, however, to bar the plaintiff, his act must be both a responsible act — that is, one not induced by the previous wrongful act of the defendant — and also one tending to produce the injury complained of. This theory would seem to offer a simpler and more satis- factory solution of the vexed question of " contributory negligence " than do any of the other prevalent doctrines. If it be objected that this theory fails to meet the difficulty raised by " continuing negligence," it may be answered that no other theory meets the difficulty, while under this theory at least a partial solution may be offered. Where the plaintiff's negligence