REMEDIES - Spring 2014
Special Professor Neal R. Platt
A copy of the syllabus follows, containing information about the casebook.
Please read Unit I for our first week of class. A copy of the Palsgraf decision, which
is not in the textbook, appears at the bottom of this post.
Class web page: You are required to register on the TWEN site for this class with an
email address that you check regularly; go to www.lawschool.westlaw.com and select
“TWEN” from the menu of items along the top of the page next to the current date.
You will then be asked for your Westlaw password and for registration information
(including your email address – this need not be the address issued by the Law
School). To maximize the effectiveness of the TWEN system, please be sure to
provide all requested information. You will then be given the opportunity to register
for the TWEN website dedicated to this course (by choosing “Drop/Add a Course”).
Students should check the website regularly throughout the semester.
MAURICE A. DEANE SCHOOL OF LAW
at Hofstra University
REMEDIES
Syllabus, Consisting of
Course Information & Reading List
Prof. Neal R. Platt
Spring 2014
COURSE INFORMATION
Attendance, Preparation, and Participation: Your attendance, preparation, and
participation are required, and will contribute to your final grade. Please e-mail the instructor
in the event that you must miss a class. If you miss a class, you will be required to listen to the
podcast (assuming one is available) for the class you missed. Please see “The Rules on
Attendance and Listening to Podcasts,” below.
All students are expected to read and understand the assigned materials in advance,
so that they may engage in an informed discussion of those materials in class. Those who are
late to class or unprepared may be treated as absent. The instructor reserves the right to raise
or lower your grade by a half-grade to reflect your attendance, preparation, and participation.
In addition, every class member is required to submit an anonymous course evaluation, which
will be conducted online during class time near the end of the course under the supervision
of a secretary or proctor.
The Rules on Attendance and Listening to Podcasts: The rules of the
New York State Court of Appeals, the American Bar Association, and the Law School all
require law students to be in good and regular attendance in the courses for which they are
registered. To comply with these rules, you must attend at least 85% of your
regularly-scheduled classes. Thus, you may miss no more than 15% of your classes. As this
is a three-credit course, you may miss no more than six hours of class in a semester, and must
also submit notes in conformity with the following.
To ensure that you have been exposed to all of the available content of this course, the
instructor intends to have every class recorded and made available as a podcast. If you must
miss a class for any reason, you are required to request the instructor’s permission in advance
(except in cases of genuine emergency), listen to the podcast for that class and, within
two weeks of the missed class, submit to the instructor by e-mail a complete copy of your
notes from that class. (Listening to the podcast of a class does not constitute attendance at that
class.) No one will receive a grade in this course unless he or she has attended each class or
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listened to the podcast (assuming one is available) for any missed class. A student may not
fail to engage in any practical exercise or writing requirement which the student has been
assigned.
The instructor will provide a sign-in sheet for each class. Each student is responsible
for signing in. The non-appearance of your signature on such sheet for a given class will be
dispositive evidence that you were absent from such class. Falsification of sign-in sheets is
a violation of the Code of Academic Conduct. If you exceed the permitted absences by failing
to sign in, you will be administratively withdrawn from the course. No prior notice may be
given, and you will receive notification from the Office of Academic Records indicating the
withdrawal. Any such withdrawal may have serious adverse effects upon your financial aid,
academic standing, and date of graduation. If you are excessively absent from several classes,
you may face additional sanctions, including but not limited to denial of certification of good
and regular attendance to the New York State Board of Law Examiners, or other state bar
examiners.
If you believe you must be absent from class for more than the permitted number of
hours, you should speak with the Senior Assistant Dean for Student Affairs (or the Director
of Student Affairs) and the instructor as soon as possible. Accommodations may be made for
students who must be absent for religious reasons and in cases of truly compelling hardship.
Please keep track of your absences, because it would be unfortunate and disappointing
if you were to do a substantial part of the required work and receive no credit for it.
Purpose of the Course: The purpose of this course is to familiarize the student with
judicial remedies available to successful litigants under the laws of the United States. By the
end of the course, the student should be able to identify and analyze significant Remedies
issues as they arise in practice, so that he or she may either address them personally or seek
the advice of counsel having the knowledge necessary to provide the client with effective
assistance. Students will also develop skills needed to draft litigation documents other than
briefs and memorandums of law, which are adequately covered in other courses.
My Availability: You can reach the instructor by telephone at his law office at
(212) 332-3311, or by e-mail at Neal.R.Platt@Hofstra.Edu. To make an appointment, please
call or e-mail the instructor at Neal.R.Platt@Hofstra.Edu to set up a mutually convenient time.
Class Web Page: You are required to register on the TWEN site for this class with
an e-mail address that you check at least once each day. Go to www.lawschool.westlaw.com
and select “TWEN” from the menu of items along the top of the page next to the current date.
You will then be asked for your Westlaw password and for registration information, including
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your e-mail address (which, incidentally, need not be the e-mail address issued by the Law
School). To maximize the effectiveness of the TWEN system, please provide all requested
information. You will then be given the opportunity to register for the TWEN website
dedicated to this course (by choosing “Drop/Add a Course”). Registration and participation
are an essential part of this course. Each student is responsible for ensuring that his or her
e-mail address, as listed on TWEN, is current and in good working order. Students must
check the website regularly throughout the semester, and (just in case of last-minute
cancellation or delay) immediately before leaving for class.
Text: Reading assignments are from D. LAYCOCK, MODERN AMERICAN REMEDIES:
CASES & MATERIALS (Concise 4th ed. 2012) (especial care should be taken to ensure that the
student obtains the Concise Fourth Edition (ISBN 978-1-4548-1255-5)), the latest case
supplement, if any (which you are strongly advised, but not required, to purchase), and various
handouts to be distributed in class. All handouts will also be posted on the TWEN site. If you
do not receive a handout in class at the time of distribution, or if you lose your copy, it will
be your responsibility to download and print a copy from the TWEN site.
Assignments & Grading: Several times during the semester, each student will be
required to prepare and present an oral in-class presentation of a pre-assigned judicial
decision. In addition to such presentations and class discussion about the role of remedies in
civil litigation and analysis of existing case law, students will be required to submit their
proposed solution to a problem involving the tracing of embezzled assets into the estate of a
dishonest fiduciary, and to draft one or more pleadings, affidavits, and proposed injunctions.
Students will be assessed based upon their oral presentations and papers, with a possible
half-grade enhancement for exceptionally thoughtful and informed class participation. There
will be no final examination.
Computers and Cell Phones: Computers are to be used during class for taking notes
and for no other purpose. During class, you may not load a browser or be online, whether for
surfing the web, instant messaging, BLACKBERRY MESSENGER, TWITTER, e-mail, or any other
functionality. Your cell phone (not just the ringer and vibrator) must be turned off during
class, as incoming calls are distracting to you even if no one else knows they’re coming in.
If, during any particular class, you have no choice but to be available in case of a medical or
other emergency threatening a child or an incapacitated person in your care, you must obtain
permission from the instructor to leave your cell phone on during that class. Even a single
violation of this rule may result in your being prohibited from bringing a laptop or cell phone
to class.
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READING LIST
UNIT I. — COMPENSATORY DAMAGES.
Limitations on Damages Imposed by Practical and Substantive Policy Goals, and the
Requirement of Reasonable Certainty
Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), handout.
Evra Corp. v. Swiss Bank Corp., 673 F.2d 951 (7th Cir. 1982), reprinted in D. LAYCOCK, at 88,
and notes following.
Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477 (1977), reprinted in D. LAYCOCK, at
94, and notes following.
Bigelow v. RKO Radio Pictures, 327 U.S. 251 (1946), reprinted in D. LAYCOCK, at 99, and
notes following.
The Rightful Position Principle
United States v. Hatahley, 257 F.2d 920 (10th Cir. 1958), reprinted in D. LAYCOCK, MODERN
AMERICAN REMEDIES: CASES & MATERIALS 9, and notes following.
Value as the Measure of Rightful Position
In re Sept. 11th Litig., 590 F. Supp. 2d 535 (S.D.N.Y. 2008), reprinted in D. LAYCOCK, at 16,
and notes following.
Trinity Church v. John Hancock Mut. Life Ins. Co., 502 N.E.2d 532 (Mass. 1987), reprinted
in D. LAYCOCK, at 22, and notes following.
Reliance and Expectancy as Measures of Rightful Position
Neri v. Retail Marine Corp., 30 N.Y.2d 393, 334 N.Y.S.2d 165, 285 N.E.2d 311 (1972),
reprinted in D. LAYCOCK, at 28, and notes following.
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Chatlos Sys., Inc. v. National Cash Register Corp., 670 F.2d 1304 (3d Cir. 1982), reprinted
in D. LAYCOCK, at 36, and notes following.
Smith v. Bolles, 132 U.S. 125 (1889), reprinted in D. LAYCOCK, at 39, and notes following.
Consequential Damages
Buck v. Morrow, 21 S.W. 398 (Tex. Civ. App. 1893), reprinted in D. LAYCOCK, at 41, and
notes following.
Meinrath v. Singer Co., 87 F.R.D. 422 (S.D.N.Y. 1980), reprinted in D. LAYCOCK, at 45, and
notes following.
Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768 (Tex. Ct. App. 1987), reprinted in D. LAYCOCK,
at 49, and notes following.
Collateral Source Rule
Notes on the Collateral Source Rule, D. LAYCOCK, at 78-80.
Debate Over Tort Reform
Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007), reprinted in D. LAYCOCK, at 121,
and Notes on Valuing Pain and Suffering and Human Life, D. LAYCOCK, at 133-37.
Dignitary and Constitutional Harms
Levka v. City of Chicago, 748 F.2d 421 (7th Cir. 1984), reprinted in D. LAYCOCK, at 137, and
notes following.
Carey v. Piphus, 435 U.S. 247 (1978), reprinted in D. LAYCOCK, at 145, and notes following.
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UNIT II. — RESTITUTION.
Mistake
Blue Cross Health Servs., Inc. v. Sauer, 800 S.W.2d 72 (Mo. Ct. App. 1990), reprinted in
D. LAYCOCK, at 489, and notes following.
Somerville v. Jacobs, 170 S.E.2d 805 (W. Va. 1969), reprinted in D. LAYCOCK, at 495, and
notes following.
Disgorgement
Olwell v. Nye & Nissen Co., 173 P.2d 652 (Wash. 1946), reprinted in D. LAYCOCK, at 513,
and notes following.
Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117 (9th Cir. 1968), reprinted
in D. LAYCOCK, at 520, and notes following.
Constructive Trusts & Tracing Rules
Paoloni v. Goldstein, 331 F. Supp. 2d 1310 (D. Colo. 2004), reprinted in D. LAYCOCK, at 551,
and notes following.
Ruffin v. Ruffin, 2000 WL 198078 (Va. Ct. App. 2000), reprinted in D. LAYCOCK, at 556, and
notes following.
In re Leitner, 236 B.R. 420 (Bankr. D. Kan. 1999), reprinted in D. LAYCOCK, at 559, and
notes following.
In re Erie Trust Co., 191 A. 613 (Pa. 1937), reprinted in D. LAYCOCK, at 564, and notes
following.
In re JD Servs., Inc., 284 B.R. 292 (Bankr. D. Utah 2002), reprinted in D. LAYCOCK, at 570,
and notes following.
Problems 8-1 through 8-3, D. LAYCOCK, at 575-76.
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UNIT III. — PUNITIVE REMEDIES.
Punitive Damages: The Common Law and Statutes
Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41 (Tex.
1998), reprinted in D. LAYCOCK, at 196, and notes following.
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), reprinted in D. LAYCOCK, at 171, and
notes following.
Punitive Damages: The U.S. Constitution
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), reprinted in D. LAYCOCK,
at 184, and notes following.
Philip Morris USA v. Williams, 549 U.S. 346 (2007), reprinted in D. LAYCOCK, at 191, and
notes following.
UNIT IV. — INJUNCTIONS & CONTEMPT.
Differences Between Preliminary and Permanent Injunctions
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), reprinted in D. LAYCOCK, at 350,
and notes following.
Coyne-Delany Co. v. Capital Dev. Bd., 717 F.2d 385 (7th Cir. 1983), reprinted in D. LAYCOCK,
at 358, and notes following.
Applying for a Preliminary Injunction
Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968), reprinted in
D. LAYCOCK, at 362, and notes following.
Sampson v. Murray, 415 U.S. 61 (1974), reprinted in D. LAYCOCK, at 365, and notes
following.
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Preventive Injunctions (Prohibiting Unlawful Acts)
Almurbati v. Bush, 366 F. Supp. 2d 72 (D.D.C. 2005), reprinted in D. LAYCOCK, at 207, and
notes following.
Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977), reprinted in
D. LAYCOCK, at 212, and notes following.
United States v. W.T. Grant Co., 345 U.S. 629 (1953), reprinted in D. LAYCOCK, at 218, and
notes following.
Prophylactic Injunctions (Prohibiting Lawful Acts that May Have Bad Results)
Nicholson v. Connecticut Half-Way House, Inc., 218 A.2d 383 (Conn. 1966), reprinted in
D. LAYCOCK, at 221, and notes following.
Pepsico, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995), reprinted in D. LAYCOCK, at 224, and
notes following.
Reparative Injunctions (Requiring Repair of Damage Already Caused by Wrongful Acts)
Forster v. Boss, 97 F.3d 1127 (8th Cir. 1996), reprinted in D. LAYCOCK, at 232, and notes
following.
Winston Research Corp. v. Minnesota Mining & Mfg. Co., 350 F.2d 134 (9th Cir. 1965),
reprinted in D. LAYCOCK, at 236, and notes following.
Bailey v. Proctor, 160 F.2d 78 (1st Cir. 1947), reprinted in D. LAYCOCK, at 240, and notes
following.
Structural Injunctions (Fixing an Institution)
Brown v. Plata, 131 S. Ct. 1910 (2011), reprinted in D. LAYCOCK, at 257, and notes following.
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Contempt
United Mine Workers v. Bagwell, 512 U.S. 821 (1994), reprinted in D. LAYCOCK, at 601, and
notes through 613.
UNIT V. — ATTORNEYS’ FEES.
Fee-Shifting Statutes
City of Riverside v. Rivera, 477 U.S. 561 (1986), reprinted in D. LAYCOCK, at 689, and notes
following.
Fee Awards in Common-Fund Cases
In re Cabletron Sys., Inc. Secs. Litig., 239 F.R.D. 30 (D.N.H. 2006), reprinted in D. LAYCOCK,
at 702, and notes following.
UNIT VI. — CHOOSING REMEDIES.
Damages or Injunction?
Pardee v. Camden Lumber Co., 73 S.E. 82 (W. Va. 1911), reprinted in D. LAYCOCK, at 297,
and notes following.
Brook v. James A. Cullimore & Co., 436 P.2d 32 (Okla. 1967), reprinted in D. LAYCOCK,
at 305, and notes following.
Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099 (9th Cir. 1994), reprinted in
D. LAYCOCK, at 307, and notes following.
Damages or Specific Performance?
Campbell Soup Co. v. Wentz, 172 F.2d 80 (3d Cir. 1948), reprinted in D. LAYCOCK, at 312,
and notes following.
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Van Wagner Adver. Corp. v. S&M Enters., 67 N.Y.2d 186, 501 N.Y.S.2d 628, 492 N.E.2d 756
(1986), reprinted in D. LAYCOCK, at 319, and notes following.
Undue Hardship to Defendants and Burdens on the Courts
Whitlock v. Hilander Foods, Inc., 720 N.E.2d 302 (Ill. App. Ct. 1999), reprinted in
D. LAYCOCK, at 324, and notes following.
Co-Operative Ins. Soc’y Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1 (H.L.), reprinted
in D. LAYCOCK, at 330, and notes following.
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), reprinted in D. LAYCOCK, at 337,
and notes following.
Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978), reprinted in D. LAYCOCK, at 342, and notes
following.
Sovereign Immunity
Edelman v. Jordan, 415 U.S. 651 (1974), reprinted in D. LAYCOCK, at 373, and notes
following.
UNIT VII. — DECLARATORY JUDGMENTS.
Nashville, Chattanooga, & St. Louis Ry. v. Wallace, 288 U.S. 249 (1933), reprinted in
D. LAYCOCK, at 453, and notes following.
Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993), reprinted in D. LAYCOCK,
at 458, and notes following.
Steffel v. Thompson, 415 U.S. 452 (1974), reprinted in D. LAYCOCK, at 466, and notes
following.
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Palsgraf v. Long Island R. Co.
Court of Appeals of New York
February 24, 1928, Argued ; May 29, 1928, Decided
No Number in Original
Reporter: 248 N.Y. 339; 162 N.E. 99; 1928 N.Y. LEXIS 1269; 59 A.L.R. 1253
caused her injuries. Essentially, the court held
that under the foreseeability test, it was not reaHelen Palsgraf, Respondent, v. The Long Island sonable to hold that the railroad’s alleged negRailroad Company, Appellant
ligence was the cause of the passenger’s injuries. Rather, it was the explosion that was the
Prior History: [***1] Appeal from a judgproximate cause, and the railroad could not
ment of the Appellate Division of the Supreme have reasonably expected such a disaster.
Court in the second judicial department, entered December 16, 1927, affirming a judgOutcome
ment in favor of plaintiff entered upon a ver- The court reversed the judgment of the appeldict.
late court and dismissed the complaint.
Palsgraf v. Long Island R. R. Co., 222 App.
Div. 166, reversed.
Disposition: Judgment reversed, etc.
Syllabus
A man carrying a package jumped aboard a car
of a moving train and, seeming unsteady as if
Case Summary
about to fall, a guard on the car reached forward to help him in and another guard on the
Procedural Posture
platform pushed him from behind, during which
Defendant railroad appealed a judgment of the the package was dislodged and falling upon
Appellate Division of the Supreme Court in
the rails exploded, causing injuries to plaintiff,
the Second Judicial Department (New York),
an intending passenger, who stood on the platwhich affirmed the trial court’s holding that the form many feet away. There was nothing in the
railroad was responsible for injuries to plainappearance of the package to give notice that
tiff passenger resulting from an explosion.
it contained explosives. In an action by the intending passenger against the [***2] railOverview
road company to recover for such injuries, the
The passenger was standing on a platform of
complaint should be dismissed. Negligence
the railroad after buying a ticket. A train stopped is not actionable unless it involves the invasion
at the station, and a man ran forward to catch
of a legally protected interest, the violation of
it. When he attempted to board the train in haste, a right, and the conduct of the defendant’s
he dropped a package containing fireworks.
guards, if a wrong in relation to the holder of
As a result, the passenger was injured from the the package, was not a wrong in its relation to
subsequent explosion and sought to hold the
the plaintiff standing many feet away.
railroad liable for negligence. Pursuant to a jury
verdict, the trial court entered a judgment in fa- Counsel: William McNamara and Joseph F.
vor of the passenger. The appellate court afKeany for appellant. Plaintiff failed to estabfirmed, and the railroad appealed. Upon final de- lish that her injuries were caused by neglitermination, the court reversed the judgment,
gence of the defendant and it was error for
holding that the passenger failed to prove that
the court to deny the defendant’s motion to disthe railroad’s alleged negligence proximately miss the complaint. ( Paul v. Cons. Fireworks
Page 2 of 9
248 N.Y. 339, *339; 162 N.E. 99, **99; 1928 N.Y. LEXIS 1269, ***2
Co., 212 N. Y. 117; Hall v. N. Y. Tel. Co., 214
N. Y. 49; Perry v. Rochester Lime Co., 219 N. Y.
60; Pyne v. Cazenozia Canning Co., 220 N.
Y. 126; Adams v. Bullock, 227 N. Y. 208; McKinney v. N. Y. Cons. R. R. Co., 230 N. Y. 194;
Palsey v. Waldorf Astoria, Inc., 220 App. Div.
613; Parrott v. Wells Fargo & Co., 15 Wall.
524; A., T. & S. Fe Ry. Co. v. Calhoun, 213 U.S.
1; Prudential Society, Inc., v. Ray, 207 App.
Div. 496; 239 N. Y. 600.)
Matthew W. Wood for respondent. [***3] The
judgment of affirmance was amply sustained
by the law and the facts. ( Saugerties Bank v.
Delaware & Hudson Co., 236 N. Y. 425; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94
U.S. 469; Lowery v. Western Union Tel. Co.,
60 N. Y. 198; Insurance Co. v. Tweed, 7 Wall.
44; Trapp v. McClellan, 68 App. Div. 362; Ring
v. City of Cohoes, 77 N. Y. 83; McKenzie v.
Waddell Coal Co., 89 App. Div. 415; Slater v.
Barnes, 241 N. Y. 284; King v. Interborough R.
T. Co., 233 N. Y. 330.)
Judges: Cardozo, Ch. J. Pound, Lehman and
Kellogg, JJ., concur with Cardozo, Ch. J.; Andrews, J., dissents in opinion in which Crane
and O’Brien, JJ., concur.
Opinion by: CARDOZO
Opinion
[*340] [**99] Plaintiff was standing on a
platform of defendant’s railroad after buying a
ticket to go to Rockaway Beach. A train
stopped at the station, bound for another place.
Two men ran forward to catch it. One of the
men reached the platform of the car without mishap, though the train was already moving.
The other man, carrying a package, jumped
aboard the car, but seemed unsteady as if about
to fall. A guard on the car, who had held the
door open, reached [***4] forward to help
[*341] him in, and another guard on the platform pushed him from behind. In this act, the
package was dislodged, and fell upon the rails. It
was a package of small size, about fifteen
inches long, and was covered by a newspaper.
In fact it contained fireworks, but there was
nothing in its appearance to give notice of its
contents. The fireworks when they fell exploded. The shock of the explosion threw
down some scales at the other end of the platform, many feet away. The scales struck the
plaintiff, causing injuries for which she sues.
The conduct of the defendant’s guard, if a wrong
in its relation to the holder of the package,
was not a wrong in its relation to the plaintiff,
standing far away. Relatively to her it was
not negligence at all. Nothing in the situation
gave notice that the falling package had in it the
potency of peril to persons thus removed.
HN1 Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ″Proof of negligence in the air, so to speak, will not do″
(Pollock, Torts [11th ed.], p. 455; Martin v. Herzog, 228 N. Y. 164, 170; cf. Salmond, Torts
[6th ed.], p. [***5] 24). ″Negligence is the absence of care, according to the circumstances″
(Willes, J., in Vaughan v. Taff Vale Ry. Co., 5 H.
& N. 679, 688; 1 Beven, Negligence [4th
ed.], 7; Paul v. Consol. Fireworks Co., 212 N.
Y. 117; Adams v. Bullock, 227 N. Y. 208,
211; Parrott v. Wells-Fargo Co., 15 Wall. [U.S.]
524). The plaintiff as she stood upon the platform of the station might claim to be protected
against intentional invasion of her bodily security. Such invasion is not charged. She might
claim to be protected against unintentional invasion by conduct involving in the thought of
reasonable men an unreasonable hazard that
such invasion would ensue. These, from the
point of view of the law, were the bounds of her
immunity, with perhaps some rare exceptions,
survivals for the most part of ancient forms of liability, where conduct is held to be at the
peril of the actor ( Sullivan v. Dunham, 161 N.
Y. 290). [*342] HN2 If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself
the quality of a tort because it happened to
be a wrong, though apparently [***6] not one
involving the risk of bodily insecurity, with
reference to some one else. ″In every instance,
before negligence can be predicated of a
given act, back of the act must be sought and
found a duty to the individual complaining,
Page 3 of 9
248 N.Y. 339, *342; 162 N.E. 99, **100; 1928 N.Y. LEXIS 1269, ***6
[**100] the observance of which would have
averted or avoided the injury″ (McSherry, C.
J., in W. Va. Central R. Co. v. State, 96 Md. 652,
666; cf. Norfolk & Western Ry. Co. v. Wood,
99 Va. 156, 158, 159; Hughes v. Boston & Maine
R. R. Co., 71 N. H. 279, 284; U. S. Express
Co. v. Everest, 72 Kan. 517; Emry v. Roanoke
Nav. Co., 111 N. C. 94, 95; Vaughan v. Transit Dev. Co., 222 N. Y. 79; Losee v. Clute, 51 N.
Y. 494; DiCaprio v. N. Y. C. R. R. Co., 231
N. Y. 94; 1 Shearman & Redfield on Negligence, § 8, and cases cited; Cooley on Torts [3d
ed.], p. 1411; Jaggard on Torts, vol. 2, p. 826;
Wharton, Negligence, § 24; Bohlen, Studies in
the Law of Torts, p. 601). ″The ideas of negligence and duty are strictly correlative″ (Bowen, L. J., in Thomas v. Quartermaine, 18 Q.
B. D. 685, 694). The plaintiff sues in her own
right for a wrong personal to her, and not as
the vicarious beneficiary [***7] of a breach of
duty to another.
est only, the safety of his package. Out of this
wrong to property, which threatened injury to
nothing else, there has passed, we are told, to
the plaintiff by derivation or succession a right
of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of
the effort to build the plaintiff’s right upon the
basis of a wrong to some one else. The gain
is one of emphasis, for a like result would follow if the interests were the same. Even
then, the orbit of the danger as disclosed to the
eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor
in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground.
The wrongdoer as to them is the man who carries the bomb, not the one who explodes it
without suspicion of the danger. Life will have
to be made over, and human nature transformed, before prevision so extravagant can be
A different conclusion will involve us, and
accepted [***9] as the norm of conduct, the
swiftly too, in a maze of contradictions. A guard
customary standard to which behavior must constumbles over a package which has been left
form.
upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite.
The argument for the plaintiff is built upon the
To the eye of ordinary vigilance, the bundle is shifting meanings of such words as ″wrong″
abandoned waste, which may be kicked or
and ″wrongful,″ and shares their instability.
trod on with impunity. Is a passenger at the other What the plaintiff must [*344] show is ″a
end of the platform protected by the law
wrong″ to herself, i. e., a violation of her
against the unsuspected hazard concealed beown right, and not merely a wrong to some
neath the waste? If not, is the result to be any dif- one else, nor conduct ″wrongful″ because unsoferent, so far as the distant passenger is concial, but not ″a wrong″ to any one. We are
cerned, when the guard stumbles over a valise told that one who drives at reckless speed
[*343] which a truckman or a porter has
through a crowded city street is guilty of a negleft upon the walk? The passenger far away, if ligent act and, therefore, of a wrongful one irthe victim of a wrong at all, has a cause of acrespective of the consequences. Negligent the
tion, not derivative, but original and primary. His act is, and wrongful in the sense that it is unclaim to be protected against invasion of his
social, but wrongful and unsocial in relation to
bodily security is neither greater nor less beother travelers, only because the eye of vigicause the act resulting in the invasion is a wrong lance perceives the risk of damage. If the same
to another far removed. In this case, the
act were to be committed on a speedway or a
rights that are said to have been violated, the in- race course, it would lose its wrongful quality.
terests said to have been invaded, are not
HN3 The risk reasonably to be perceived deeven of the same order. The man was not infines the duty to be obeyed, and risk imports rejured in his person nor even put in danger. The lation; it is risk to another or to others within
[***8] purpose of the act, as well as its efthe range of apprehension (Seavey, Negligence,
fect, was to make his person safe. If there was Subjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson & Carpenter, 247 N. Y. 365).
a wrong to him at all, which may very well
be doubted, it was a wrong to a property inter- This [***10] does not mean, of course, that
Page 4 of 9
248 N.Y. 339, *344; 162 N.E. 99, **100; 1928 N.Y. LEXIS 1269, ***10
one who launches a destructive force is always
relieved of liability if the force, though
known to be destructive, pursues an unexpected path. ″It was not necessary that the defendant should have had notice of the particular method in which an accident would occur,
if the possibility of an accident was clear to the
ordinarily prudent eye″ ( Munsey v. Webb,
231 U.S. 150, 156; Condran v. Park & Tilford,
213 N. Y. 341, 345; Robert v. U. S. E. F.
Corp., 240 N. Y. 474, 477). Some acts, such as
shooting, are so imminently dangerous to any
one who may come within reach of the missile, however unexpectedly, as to impose a
duty of prevision not far from that of an insurer. Even today, and much oftener in earlier
stages of the law, one acts [**101] sometimes at one’s peril (Jeremiah Smith, Tort
and Absolute Liability, 30 H. L. Rv. 328; Street,
Foundations of Legal Liability, vol. 1, pp. 77,
78). Under this head, it may be, fall certain cases
of what is known as transferred intent, an act
willfully dangerous to A resulting by misadventure in injury to B ( Talmage v. Smith, 101
Mich. 370, 374) [*345] These cases aside,
wrong [***11] is defined in terms of the natural or probable, at least when unintentional (
Parrot v. Wells-Fargo Co. [The Nitro-Glycerine Case], 15 Wall. [U.S.] 524). The range of
reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.
Here, by concession, there was nothing in the
situation to suggest to the most cautious mind
that the parcel wrapped in newspaper would
spread wreckage through the station. If the guard
had thrown it down knowingly and willfully,
he would not have threatened the plaintiff’s
safety, so far as appearances could warn him. His
conduct would not have involved, even then,
an unreasonable probability of invasion of her
bodily security. Liability can be no greater where
the act is inadvertent.
Negligence, like risk, is thus a term of relation.
Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (Bowen, L. J., in Thomas v.
Quartermaine, 18 Q. B. D. 685, 694). HN4 Negligence is not a tort unless it results in the commission of a wrong, and the commission of
a wrong imports the violation of a right, in this
[***12] case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not
against all forms of interference or aggression,
but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has
been damage to his person. If the harm was
not willful, he must show that the act as to him
had possibilities of danger so many and apparent as to entitle him to be protected against
the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. Confirmation of this view
will be found in the history and development
of the action on the case. Negligence as a basis of civil liability was unknown to mediaeval law (8 Holdsworth, History of English Law,
p. 449; Street, Foundations of Legal Liability,
vol. 1, [*346] pp. 189, 190). For damage to the
person, the sole remedy was trespass, and trespass did not lie in the absence of aggression,
and that direct and personal (Holdsworth, op. cit.
p. 453; Street, op. cit. vol. 3, pp. 258, 260,
vol. 1, pp. 71, 74.) Liability for other damage,
as where a servant without orders from the
master [***13] does or omits something to the
damage of another, is a plant of later growth
(Holdsworth, op. cit. 450, 457; Wigmore, Responsibility for Tortious Acts, vol. 3, Essays in
Anglo-American Legal History, 520, 523,
526, 533). When it emerged out of the legal
soil, it was thought of as a variant of trespass,
an offshoot of the parent stock. This appears in
the form of action, which was known as trespass on the case (Holdsworth, op. cit. p. 449; cf.
Scott v. Shepard, 2 Wm. Black. 892; Green, Rationale of Proximate Cause, p. 19). The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in
the person of another. Thus to view his cause
of action is to ignore the fundamental difference between tort and crime (Holland, Jurisprudence [12th ed.], p. 328). He sues for breach
of a duty owing to himself.
The law of causation, remote or proximate, is
thus foreign to the case before us. HN5 The
question of liability is always anterior to the
question of the measure of the consequences that
Page 5 of 9
248 N.Y. 339, *346; 162 N.E. 99, **101; 1928 N.Y. LEXIS 1269, ***13
go with liability. If there is no tort to be redressed, there is no occasion to consider what
damage might be recovered if there were a finding of a tort. We [***14] may assume, without deciding, that negligence, not at large or in
the abstract, but in relation to the plaintiff,
would entail liability for any and all consequences, however novel or extraordinary ( Bird
v. St. Paul F. & M. Ins. Co., 224 N. Y. 47,
54; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y.
264; Smith v. London & S. W. Ry. Co., L. R. 6
C. P. 14; 1 Beven, Negligence, 106; Street,
op. cit. vol. 1, p. 90; Green, Rationale of Proximate Cause, pp. 88, 118; cf. Matter of Polemis, L. R. 1921, 3 K. B. 560; 44 Law Quarterly Review, 142). There is room for [*347]
argument that a distinction is to be drawn according to the diversity of interests invaded by
the act, as where conduct negligent in that it
threatens an insignificant invasion of an interest in property results in an unforseeable invasion of an interest of another order, as, e. g.,
one of bodily security. Perhaps other distinctions may be necessary. We do not go into the
question now. The consequences to be followed must first be rooted in a wrong.
it a relative concept -- the breach of some duty
owing to a particular person or to particular
persons? Or where there is an act which unreasonably threatens the safety of others, is the
doer liable for all its proximate consequences,
even where they result in injury to one who
would generally be thought to be outside the
radius of danger? This is not a mere dispute as
to words. We might not believe that to the average mind the dropping of the bundle would
seem to involve the probability of harm to
the plaintiff standing many feet away whatever
might be the case as to [***16] the owner
or to one so near as to be likely to be struck
by its fall. If, however, we adopt the second hypothesis [*348] we have to inquire only as
to the relation between cause and effect. We deal
in terms of proximate cause, not of negligence.
Negligence may be defined roughly as an act
or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect oneself from the dangers resulting from such acts. Here I confine myself
to the first branch of the definition. Nor do I
comment on the word ″unreasonable.″ For
The judgment of the Appellate Division and
present purposes it sufficiently describes that avthat of the Trial Term should be reversed, and
erage of conduct that society requires of its
the complaint dismissed, with costs in all courts. members.
There must be both the act or the omission,
and the right. It is the act itself, not the intent
Dissent by: [***15] ANDREWS
of the actor, that is important. ( Hover v. Barkhoof, 44 N. Y. 113; Mertz v. Connecticut Co.,
Dissent
217 N. Y. 475.) In criminal law both the intent
and the result are to be considered. Intent
Andrews, J. (dissenting). Assisting a passenger again is material in tort actions, where punitive
damages are sought, dependent on actual malto board a train, the defendant’s servant negligently knocked a package from his arms. It fell ice -- not on merely reckless conduct. But here
neither insanity nor infancy lessens responsibetween the platform and the cars. Of its contents the servant knew and could know noth- bility. ( Williams v. Hays [***17] , 143 N. Y.
442.)
ing. A violent explosion followed. The concussion broke some scales [**102] standing a
As has been said, except in cases of contribuconsiderable distance away. In falling they intory negligence, there must be rights which are
jured the plaintiff, an intending passenger.
or may be affected. Often though injury has ocUpon these facts may she recover the damages curred, no rights of him who suffers have been
touched. A licensee or trespasser upon my
she has suffered in an action brought against
land has no claim to affirmative care on my
the master? The result we shall reach depends
upon our theory as to the nature of negligence. Is part that the land be made safe. ( Meiers v. Koch
Page 6 of 9
248 N.Y. 339, *348; 162 N.E. 99, **102; 1928 N.Y. LEXIS 1269, ***17
Brewery, 229 N. Y. 10.) Where a railroad is required to fence its tracks against cattle, no
man’s rights are injured should he wander upon
the road because such fence is absent. ( Di
Caprio v. N. Y. C. R. R., 231 N. Y. 94.) An unborn child may not demand immunity from
personal harm. ( Drobner v. Peters, 232 N. Y.
220.)
But we are told that ″there is no negligence unless there is in the particular case a legal duty
to take care, and this duty must be one which is
owed to the plaintiff [*349] himself and not
merely to others.″ (Salmond Torts [6th ed.], 24.)
This, I think too narrow a conception. Where
there is the unreasonable act, and some right that
may be affected there is negligence whether
damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether [***18]
we strike an approaching car or miss it by an
inch. The act itself is wrongful. It is a
wrong not only to those who happen to be
within the radius of danger but to all who might
have been there -- a wrong to the public at
large. Such is the language of the street. Such
the language of the courts when speaking of contributory negligence. Such again and again
their language in speaking of the duty of some
defendant and discussing proximate cause in
cases where such a discussion is wholly irrelevant on any other theory. ( Perry v. Rochester
Line Co., 219 N. Y. 60.) As was said by Mr.
Justice Holmes many years ago, ″the measure
of the defendant’s duty in determining whether
a wrong has been committed is one thing, the
measure of liability when a wrong has been committed is another.″ ( Spade v. Lynn & Boston
R. R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society
from unnecessary danger, not to protect A, B
or C alone.
lationship between him and those whom he
does in fact injure. If his act has a tendency to
harm some one, it harms him a mile away as
surely as it does those on the scene. We now permit children to recover for the negligent killing of the father. It was never prevented on the
theory that no duty was owing to them. A husband may be compensated for [*350] the loss
of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as
to the wife is merely an attempt to fit facts to
theory. An insurance company paying a fire loss
recovers [**103] its payment of the negligent incendiary. We speak of subrogation -- of
suing in the right of the insured. Behind the
cloud of words is the fact they hide, that the act,
wrongful as to the insured, has also injured
the company. Even if it be true that the fault
of father, wife or insured will prevent recovery,
it is because we consider the original negligence not the proximate cause of the injury. (Pollock, Torts [12th ed.], 463.)
In the well-known Polemis Case [***20]
(1921, 3 K. B. 560), Scrutton, L. J., said that
the dropping of a plank was negligent for it
might injure ″workman or cargo or ship.″ Because of either possibility the owner of the vessel was to be made good for his loss. The act
being wrongful the doer was liable for its proximate results. Criticized and explained as this
statement may have been, I think it states the law
as it should be and as it is. ( Smith v. London
& Southwestern Ry. Co., [1870-71] 6 C. P. 14;
Anthony v. Slaid, 52 Mass. 290; Wood v.
Penn. R. R. Co., 177 Penn. St. 306; Trashansky v. Hershkovitz, 239 N. Y. 452.)
The proposition is this. Every one owes to the
world at large the duty of refraining from
those acts that may unreasonably threaten the
safety of others. Such an act occurs. Not only is
he wronged to whom harm might reasonably
It may well be that there is no such thing as neg- be expected to result, but he also who is in fact
ligence in the abstract. ″Proof of negligence
injured, even if he be outside what would genin the air, so to speak, will not do.″ In an empty erally be thought the danger zone. There
world negligence would not exist. It does inneeds be duty due the one complaining but this
volve a relationship between [***19] man and is not a duty to a particular individual behis fellows. But not merely a relationship because as to him harm might be expected. Harm
tween man and those whom he might reason- to some one being the natural result of the
ably expect his act would injure. Rather, a re-
Page 7 of 9
248 N.Y. 339, *350; 162 N.E. 99, **103; 1928 N.Y. LEXIS 1269, ***20
act, not only that one alone, [***21] but all
those in fact injured may complain. We have
never, I think, held otherwise. Indeed in the
Di Caprio case we said that a breach of a
[*351] general ordinance defining the degree
of care to be exercised in one’s calling is evidence of negligence as to every one. We did not
limit this statement to those who might be expected to be exposed to danger. Unreasonable
risk being taken, its consequences are not confined to those who might probably be hurt.
ture events. Without each the future would not
be the same. Each is proximate in the sense
it is essential. But that is not what we mean by
the word. Nor on the other hand do we mean
sole cause. There is no such thing.
The right to recover damages rests on additional considerations. The plaintiff’s rights must
be injured, and this injury must be caused by
the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property down stream. We are not liable
if all this happened because of some reason other
than the insecure foundation. But when injuries do result from our unlawful act we are liable for the [***22] consequences. It does not
matter that they are unusual, unexpected, unforeseen and unforseeable. But there is one limitation. The damages must be so connected
with the negligence that the latter may be said
to be the proximate cause of the former.
As we have said, we cannot trace the effect of
an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Serajevo may be the necessary antecedent to an assassination in London twenty years
hence. An overturned lantern may burn all
Chicago. We may follow the fire from the shed
to the last building. We rightly say the fire
started by the lantern caused its destruction.
Should analogy [***23] be thought helpful,
however, I prefer that of a stream. The spring,
starting on its journey, is joined by tributary
after tributary. The river, reaching the ocean,
comes from a hundred sources. No man may say
whence any drop of water is derived. Yet for
a time distinction may be possible. Into the clear
If this be so, we do not have a plaintiff suing
by ″derivation or succession.″ Her action is creek, brown swamp water flows from the
left. Later, from the right comes water stained
original and primary. Her claim is for a
breach of duty to herself -- not that she is sub- by its clay bed. The three may remain for a
space, sharply divided. But at last, inevitably
rogated to any right of action of the owner of
the parcel or of a passenger standing at the scene no trace of separation remains. They are so commingled that all distinction is lost.
of the explosion.
A cause, but not the proximate cause. What we
do mean by the word ″proximate″ is, that because of convenience, of public policy, of a
rough sense of justice, the law arbitrarily declines to trace a series [***24] of events beyond a certain point. This is not logic. It is pracThese two words have never been given an in- tical politics. Take our rule as to fires. Sparks
clusive definition. What is a cause in a legal
from my burning haystack set on fire [**104]
sense, still more what is a proximate cause, de- my house and my neighbor’s. I may recover
pend in each case upon many considerations,
from a negligent railroad. He may not. Yet the
as does the existence of negligence itself. Any wrongful act as directly harmed the one as
philosophical doctrine of causation does not
the other. We may regret that the line was drawn
help us. A boy throws a stone into a pond. The just where it was, but drawn somewhere it
ripples spread. The water level rises. The hishad to be. We said the act of the railroad was
tory of that pond is altered to all eternity. It will not the proximate cause of our neighbor’s fire.
be altered by other causes also. Yet it will be
Cause it surely was. The words we used
forever the resultant of all causes combined. were [*353] simply indicative of our notions
Each one will have an influence. How great
of public policy. Other courts think differonly omniscience can say. You may speak of a ently. But somewhere they reach the point where
chain, or if you please, a net. An analogy is
they cannot say the stream comes from any
of little aid. [*352] Each cause brings about fu- one source.
Page 8 of 9
248 N.Y. 339, *353; 162 N.E. 99, **104; 1928 N.Y. LEXIS 1269, ***24
Take the illustration given in an unpublished
manuscript by a distinguished and helpful writer
on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk
nearby, is killed. B, sitting in a window of a
building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A
[***25] nursemaid, ten blocks away, startled
by the noise, involuntarily drops a baby from
her arms to the walk. We are told that C may not
recover while A may. As to B it is a question
for court or jury. We will all agree that the baby
might not. Because, we are again told, the
chauffeur had no reason to believe his conduct
involved any risk of injuring either C or the
baby. As to them he was not negligent.
pected channels. ( Donnelly v. Piercy Contracting Co., 222 N. Y. 210). This is rather rhetoric than law. There is in truth little to guide us
other than common sense.
There are some hints that may help us. The
proximate cause, involved as it may be with
many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was
a natural and continuous sequence between
cause and effect. Was the one a substantial factor in producing the other? Was there a direct
connection between them, without too many intervening causes? Is the effect of cause on result not too attentuated? Is the cause likely, in the
usual judgment of mankind, to produce [***27] the result? Or by the exercise of
prudent foresight could the result be foreseen? Is the result too remote from the cause,
But the chauffeur, being negligent in risking
and here we consider remoteness in time and
the collision, his belief that the scope of the harm space. ( Bird v. St. Paul F. & M. Ins. Co.,
he might do would be limited is immaterial.
224 N. Y. 47, where we passed upon the conHis act unreasonably jeopardized the safety of
struction of a contract -- but something was also
any one who might be affected by it. C’s in- said on this subject.) Clearly we must so conjury and that of the baby were directly tracesider, for the greater the distance either in time or
able to the collision. Without that, the injury
space, the more surely do other causes interwould not have happened. C had the right to sit vene to affect the result. When a lantern is overin his office, secure from such dangers. The
turned the firing of a shed is a fairly direct conbaby was entitled to use the sidewalk with rea- sequence. Many things contribute to the
sonable safety.
spread of the conflagration -- the force of the
wind, the direction and width of streets, the charThe true theory is, it seems to me, that the inacter of intervening structures, other factors.
jury to C, if in truth he is to be denied recov- We draw an uncertain and wavering line, but
ery, and the injury to the baby is that their sevdraw it we must as best we can.
eral injuries were not the proximate result of the
negligence. And here not what the chauffeur
Once again, it is all a question of fair judghad reason to believe would be the result of his ment, always [*355] keeping in mind the fact
conduct, but what [***26] the prudent would
that we endeavor to make a rule in each case
foresee, may have a bearing. May have some that will be practical and in keeping with the
bearing, for the problem [*354] of proxigeneral understanding of mankind.
mate cause is not to be solved by any one conHere another question must be answered. In
sideration.
the case supposed it is said, and said correctly,
It is all a question of expediency. There are no that the chauffeur is liable for the direct effixed rules to govern our judgment. There
fect of the explosion [***28] although he had
are simply matters of which we may take acno reason to suppose it would follow a collicount. We have in a somewhat different connec- sion. ″The fact that the injury occurred in a diftion spoken of ″the stream of events.″ We
ferent manner than that which might have
been expected does not prevent the chauffeur’s
have asked whether that stream was deflected
-- whether it was forced into new and unex- negligence from being in law the cause of
Page 9 of 9
248 N.Y. 339, *355; 162 N.E. 99, **104; 1928 N.Y. LEXIS 1269, ***28
the injury.″ But the natural results of a negligent act -- the results which a prudent man
would or should foresee -- do have a bearing upon the decision as to proximate cause.
We have said so repeatedly. What should be
foreseen? No human foresight would suggest
that a collision itself might injure one a
block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts [**105] speak,
assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur
is responsible.
immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some
distance away. How far cannot be told from the
record -- apparently twenty-five or thirty feet.
Perhaps less. Except for the explosion, she
would not have been injured. We are told by
the appellant in his brief ″it cannot be denied that
the explosion was the direct cause of the plaintiff’s injuries.″ So it was a substantial factor
in producing the result -- there was here a natural and continuous sequence -- direct connection. The only intervening cause was that instead of blowing her to the ground the
concussion smashed the weighing machine
which in [***30] turn fell upon her. There was
It may be said this is unjust. Why? In fairness no remoteness in time, little in space. And
he should make good every injury flowing from surely, given such an explosion as here it needed
no great foresight to predict that the natural rehis negligence. Not because of tenderness toward him we say he need not answer for all that sult would be to injure one on the platform
at no greater distance from its scene than was
follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the ex- the plaintiff. Just how no one might be able to
predict. Whether by flying fragments, by broplosion. We trace the consequences -- not indefinitely, but to a certain [***29] point. And ken glass, by wreckage of machines or structures no one could say. But injury in some
to aid us in fixing that point we ask what
might ordinarily be expected to follow the fire form was most probable.
or the explosion.
Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not
This last suggestion is the factor which must dethe proximate result of the negligence. That is all
termine the case before us. The act upon
we have before us. The court refused to so
which defendant’s liability rests is knocking an
charge. No request was made to submit the matapparently harmless package onto the platter to the jury as a question of fact, even
form. The act was negligent. For its proximate
would that have been proper upon the record beconsequences the defendant is liable. If its
fore us.
contents were broken, to the owner; if it fell
The judgment appealed from should be afupon and crushed a passenger’s foot, then to
him. If it exploded [*356] and injured one in the firmed, with costs.