Page:Jewish Encyclopedia Volume 1.pdf/206

160 "

Accident

THE JEWISH ENCYCLOPEDIA

Accommodation

The Mislmah and the Tosefta tri'iit the law of compensatiun for resiihsof nejriijjciice in niil)a Kainnia. i.-vi,, lomnienli'il i>n in llic Baliylciiiiaii

The Four

Talnuid, Tulnuid.

'2-H'ifi,

and

in llic .Iiriisjdcin

2-.V-, .MaiiuoniiUs, in his "Fathers," " Vail liaHazakah." trc'ats tht- suhjcct or Leading Cases, under the heading "Nizlfe Mnmon

(Daniasje to Property). The '"goring ox " with its derivatives is put aside, because full ronipensjition for its acts eau be demanded only when the master has been forewarned, and the treatise opens with the followins^ four "fathers "for full compensation, under the technical names of "ox." "pit," "chewer,'' and "kindling." Here the "ox " means an animal allowed to trespass on a stranger's land and do injury with its foot; the "chewer." a like animal thai does harm with its Both examples are derived from Ex. xxii. 4. teeth. The damage done may far surpass the gain to the owner of he animal. The " pit" refers to Ex. xxi. 33. It maybe remarked the "kindling" to Ex. xxii. 5. that Abba Arika. the eminent Babylonian aithority, undei-stands the "ox" among the " fathers " to embrace both the foot and tooth, and regards the word here rendered "chewer" as standing for man; for when a man himself commits an injury he is always I

mulcted in full damages (H. K. 3/)). Any tame animal permitted wilfully or carelessly to go on a neighbor's land, and which does mischief by knocking things over with its Derivative body, or by drag.uing them along by means of its hair. tail, harness, bridle, Cases. or yoke, or by the burden which it carries, or by rubbing against a post or wall, is a derivative of the "ox," while an animal breaking down a post or wall by rubbing against it. or detiliug grain or grass with its excrements, is a derivative of the "chewer." But striking with the body, or malignantly biting, or cniucliing on something, or kicking, is treated on the same principle as "goring."

and even hogs are named among the animals for which the owner is made Derivatives of the "pit" are a stone, knife, liable. burden, or a mound in short, anything over which one can stumble or from which one can receive injury if left in D'Qin nicn (public domain); that is, on Derivatives of the highway or on conunon lands. the "kindling " are articles which the owner has left on his roof, whence the wind carries them off to the injury of person or projierty. For whatever damage arises indirectly, the ultimate author is liable to the extent of only half compensation. Thus, when Chickens,

dogs,

cjits,



the foot, in striking the ground, kicks up jiebbles, and these cause an injury, or when the animal upsets any implements, which in turn fall upon other implements and break them, the damage is considered remote, and only half comjiensjilion is given. These remote damages, when caused by animals, are known generally as the "case of pebbles." Herein the .Jewish law ditTcrs very widely from the English common law, as laid down in the leading case of .Scott ivrsiis Shepherd (the Placing' the " Squib case "), well known to lawyers. Liability. The four "fathers" and their d<'rivalives have this in conunon; The enowner of the guilty beast or thing is liable for the full damage, to be paid from "the best"; for Scripture (Ex. xxii. 4) says. "Of the best of his own field and of the best of his own vineyard shall he make restitution." For the explanation of " the best " sec Ai'I'u.msemf.nt. The ground of liability is based upon the natural tendency of animals to do harm, and the owner is bound to watch them. The general principle is thus stated " I am tire estate of the



160

considered to have caused the injury done by anything I am bound to watch; and if I have actually caused the injury in part. I am bound to make gooil the whole injury" (B. K. 1. i) This latter point is thus illustrated: "If a pit be nine palms in it ilown a tenth ])alm, so as to make depth and I dig.

it

deep enough

as liable as

it

I

to kill a beast that falls into

had dug the whole

pit " (B.

it,

I

am

K. a).

"ox " and the "chewer" the is bound only for damage done on the land of the injured party, the "pit" is su|iposed to be on While owner

in the case of the

the ptddic dninain; the lire may start from that, or on the guilty jiarty's own ground, presumably from the latter, and he is liable. The "ox" and the "chewer" make their owner liable for harm done to man or beast, to buildings or goods the "pit." according to the words of Scripture, shoidd "an ox or

ass fall therein" (Ex. xxi. 33), only for the killing or maiming of animals as ox or ass is supposed to

—

exclude human beings and goods (Dv3, literally "imiilements") though H. .ludah. one of the older .sages, who is mentioned as dissenting on this ])oint of law, held that sjitisfaclion nnist be made for goods. The law, however, remainssuch that there is no lialiility for loss or destruction of goods, otherthaa the falling animal, by the "pit" or by any of its derivatives, even when man and goods or beast and goods fall in together. But wliili' no redress is given

Contingent Results.

for persons that fall into a ])it and die. there is redress for injiries not fatal For the death of abeast, (B. K. '.JWo.

only thcownerof the ]iit is liable, when hajipens at night or wlu'U the beast, by reason of youth, lilindness. or deafness, is not able to take care of itself; but it is otherwise when the beast is injured, but not killed. Thediggerof a ])iton liisown ground may become liable if he open the ]iroperty to public useand an injury ensile from the pit. Onlheother hand, where then' are ipulilic ]ilaees in which it is customary to deposit certain articles for instance, jars of winearounit not for damage to goods; for such water on the highway is legally considered in the nature of a As to derivatives of the "jiit." the Jlishnah "l)it." teacrhes I f a jar be left upon the highway, and a traveler stumble over it and break it. the traveler is not liable for the hiss, but, on the contrary, thcownerof the jar is liable if the traveler is hurt by the water or the potsherds (ilishuah B. K. ill. 1). A distinction is attempted by some who .say that when the article thus left on the highway or pidilic domain has been abandoned by its owner he is no lunger res|)on.sible for the injuries caused by it but this is disallowed it

—

—





bv most authorities (Maimonides,

">;izlj;e

Mamon,"

."iii. -Z).

If

any one start a

fire

on

the field

of another, he

is

of course liable for the result; if he start it on his own ground, and there is either a stone fence of sufficient height to check the flames, or a stream, or a public road (sixteen cubits in width), between the place and a neighbor's ground, the crossing over of the flames or the sparks is regarded as the result of unusual forces, against which human foresight can not avail. But in case of a fire that passes from point to jioint, wl'.oever starts it is liable for whatever damage it may do at any distance. The starter of a fire is responsible for injuries to anything except things hidmention is den, as in the Scriptures (Ex. xxii. made only of "stacks of corn, or the standing corn, or the field." Goods hidden in a field or among the .'))