Page:Harvard Law Review Volume 9.djvu/114

86 86 HARVARD LAW REVIEW, 5. If the defendant contributed to the act of injury, he should be proved responsible for it in law in one of the ways suggested by Professor Wigmore. {a) His responsibility may be proved by showing that he intended either the combination or the result. Thus, while A was negotiating trade with natives on the coast of Africa, B fired upon a boat-load of the natives, and thus broke off the trade. This, it was shown, was B's purpose ; and he was held liable.^ So, in the case of poisoning just stated, the defend- ant was held liable for the administration of poison by D, since he intended that it should be administered, though by another.^ {b) Defendant's responsibility may be proved by showing that he acted at his peril. Thus, where a carrier deviates, he becomes abso- lutely responsible for the safety of the goods during deviation, and is liable for loss even by act of God.^ So where one stores water in a reservoir he is responsible for its action, wherever it goes, until its force has become exhausted.^ Where a landowner employed a competent builder to build him a house, and the builder, unknown to the owner, placed one wall of the house within the highway, the owner is guilty of obstructing the highway.^ ic) Defendant's re- sponsibility may be proved by showing that he acted negligently ; that is, that he might reasonably be required to guard against the combination because it was one in which possible danger lurked. This principle has nothing to do with a probable result ; defendant need not have been able to foresee any particular result in order to be held negligent. It is the possibility of the act of injury which makes defendant liable. If the force he set in motion was such as to make reasonably possible such a combination of circumstances as did occur, was illegal, and resulted in harm, he is negligent in thi^ sense. A master sent aloft a seaman whom he knew to be unfit, through illness, to go aloft ; the man fell into the sea, and was drowned. The master is liable for the death.^ The master of a tug-boat struck with 1 Tarleton v. M'Gawley, Peake, 205. Lord Kenyon said (at p. 208) : " Had this been an accidental thing, no action could have been maintained ; but it is proved that the defendant had expressed an intention not to permit any to trade until a debt due from the natives to himself had been satisfied." 2 Reg. V. Michael, supra. 8 Davis V. Garrett, 6 Bing. 716. 6 Wills, J., in Reg. v. Tolson, 23 Q. B. D. 168, 173, Beale Cas. Grim. L. 286, 288. 6 U. S. V. Freeman, 4 Mas. 505. This would, it would seem, still be true (in the absence oiconsent on the part of the seaman), though the master had provided such
 * Rylands v. Fletcher, L. R. 3 H. L. 330, Smith Cas. Torts, 316.