The Common Law [62]
has notice that the particular animal kept by him has the abnormal tendency which they do sometimes show. The law has, however, been brought a little nearer to actual experience by statute in many jurisdictions.
Now let us go one step farther still. A man keeps an unbroken and unruly horse, knowing it to be so. That is not enough to throw the risk of its behavior on him. The [158] tendency of the known wildness is not dangerous generally, but only under particular circumstances. Add to keeping, the attempt to break the horse; still no danger to the public is disclosed. But if the place where the owner tries to break it is a crowded thoroughfare, the owner knows an additional circumstance which, according to common experience, makes this conduct dangerous, and therefore must take the risk of what harm may be done. /1/ On the other hand, if a man who was a good rider bought a horse with no appearance of vice and mounted it to ride home, there would be no such apparent danger as to make him answerable if the horse became unruly and did damage. /2/ Experience has measured the probabilities and draws the line between the two cases.
Whatever may be the true explanation of the rule applied to keeping tigers, or the principle of Rylands v. Fletcher, in the last cases we have entered the sphere of negligence, and, if we take a case lying somewhere between the two just stated, and add somewhat to the complexity of the circumstances, we shall find that both conduct and standard would probably be left without much discrimination to the jury, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances.
As to wrongs called malicious or intentional it is not necessary to mention the different classes a second time, and to find them a place in this series. As has been seen, they vary in the number of circumstances which must be known. Slander is conduct which is very generally at the risk of [159] the speaker, because, as charges of the kind with which it deals are manifestly detrimental, the questions which practically arise for the most part concern the defence of truth or privilege. Deceit requires more, but still simple facts. Statements do not threaten the harm in question unless they are made under such circumstances as to naturally lead to action, and are made on insufficient grounds.
It is not, however, without significance, that certain wrongs are described in language importing intent. The harm in such cases is most frequently done intentionally, if intent to cause a certain harm is shown, there need to prove knowledge of facts which made it that harm would follow. Moreover, it is often much easier to prove intent directly, than to prove the knowledge which would make it unnecessary.
The cases in which a man is treated as the responsible cause of a given harm, on the one hand, extend beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be to have chosen to cause that harm; and, on the other hand, they do not extend to all instances where the damages would not have happened but for some remote election his part. Generally speaking, the choice will be found to have extended further than a simple act, and to co-ordinated acts into conduct. Very commonly it will have extended further still, to some external consequence. But generally, also, it will be found to have stopped short of the consequence complained of.
The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.
[160] Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant. But it will be seen that the same result may be caused by a choice at different points. For instance, a man is sued for having caused his neighbor's house to burn down. The simplest case is, that he actually intended to burn it down. If so, the length
Now let us go one step farther still. A man keeps an unbroken and unruly horse, knowing it to be so. That is not enough to throw the risk of its behavior on him. The [158] tendency of the known wildness is not dangerous generally, but only under particular circumstances. Add to keeping, the attempt to break the horse; still no danger to the public is disclosed. But if the place where the owner tries to break it is a crowded thoroughfare, the owner knows an additional circumstance which, according to common experience, makes this conduct dangerous, and therefore must take the risk of what harm may be done. /1/ On the other hand, if a man who was a good rider bought a horse with no appearance of vice and mounted it to ride home, there would be no such apparent danger as to make him answerable if the horse became unruly and did damage. /2/ Experience has measured the probabilities and draws the line between the two cases.
Whatever may be the true explanation of the rule applied to keeping tigers, or the principle of Rylands v. Fletcher, in the last cases we have entered the sphere of negligence, and, if we take a case lying somewhere between the two just stated, and add somewhat to the complexity of the circumstances, we shall find that both conduct and standard would probably be left without much discrimination to the jury, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances.
As to wrongs called malicious or intentional it is not necessary to mention the different classes a second time, and to find them a place in this series. As has been seen, they vary in the number of circumstances which must be known. Slander is conduct which is very generally at the risk of [159] the speaker, because, as charges of the kind with which it deals are manifestly detrimental, the questions which practically arise for the most part concern the defence of truth or privilege. Deceit requires more, but still simple facts. Statements do not threaten the harm in question unless they are made under such circumstances as to naturally lead to action, and are made on insufficient grounds.
It is not, however, without significance, that certain wrongs are described in language importing intent. The harm in such cases is most frequently done intentionally, if intent to cause a certain harm is shown, there need to prove knowledge of facts which made it that harm would follow. Moreover, it is often much easier to prove intent directly, than to prove the knowledge which would make it unnecessary.
The cases in which a man is treated as the responsible cause of a given harm, on the one hand, extend beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be to have chosen to cause that harm; and, on the other hand, they do not extend to all instances where the damages would not have happened but for some remote election his part. Generally speaking, the choice will be found to have extended further than a simple act, and to co-ordinated acts into conduct. Very commonly it will have extended further still, to some external consequence. But generally, also, it will be found to have stopped short of the consequence complained of.
The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.
[160] Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant. But it will be seen that the same result may be caused by a choice at different points. For instance, a man is sued for having caused his neighbor's house to burn down. The simplest case is, that he actually intended to burn it down. If so, the length