Page:Harvard Law Review Volume 8.djvu/404

388 388 HARVARD LAW REVIEW. possible purpose of introducing this moral element is to make the power of avoiding the evil complained of a condition of liability, ... to give a man a fair chance to avoid doing the harm before he is held responsible for it. . . . Accordingly it would be possible to state all cases of negli- gence in terms of imputed or presumed foresight." ^ The phrasing and the application of this third element give rise to the greater part of litigation in this field. The general question is, Where shall the line be drawn to express that relation between the defendant's conduct and the harmful consequence which fair- ness and policy regard as completing civil responsibility? Observe that it is a question of a relation. From the defendant's point of view, we are apt to speak of his " negligence ; " from the standpoint of the harm done, we are apt to speak of a " natural " or " prob- able " consequence. But both of these terms, properly understood, are relative ; at whichever standpoint we take, the harm must be viewed with reference to the conduct, and the conduct with refer- ence to the harm. The further grouping of classes of cases under this head, with reference to the help to be gained by treating simi- lar questions together, is an interesting subject, but one for which space does not here suffice. 4. {a) The general principle of the preceding paragraph (3) — which we may call Normality, a term expressing the leading idea common to " natural," ** probable," *' ordinary," and the other words — suffers an important variation in a large group of cases, in which the defendant is said to act at his peril. Here it is no longer left as an open question for the jury whether the harm in question was the " natural and probable " or normal consequence of the defendant's conduct. The courts may declare once for all that certain harms are always to be regarded under certain circum- stances as the normally apprehendible consequences of certain conduct; hence, given the conduct and the consequence, and the defendant is responsible without further inquiry. This is therefore, after all, not so much a variation from the principle of Normality as a permanent reduction of the general principle to specific rules for specific cases. As Mr. Justice Holmes puts it : — "There are also many cases in which the teaching of experience has been formulated in specific rules. . . . There is no longer any need to refer to the prudent man or general experience. The facts have taught their 1 Common Law, pp. 92, 95, 144, 147.