A nuisance, whether consisting of the unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, to the injury of another, which is referred to as a "private nuisance," 107 or which affects rights enjoyed by the public generally,108 which is denominated a "public nuisance," 109 requires a showing of some damage suffered by the one who seeks redress.110 And though the individual is not precluded from recovering, as an individual, damage arising out of the maintenance of a public nuisance, he must show that such damage is peculiar to himself, and not of the general character which members of the community have suffered as such.111

Now, where the right is dependent upon the existence of damage, as in the cases referred to and in other instances which will be mentioned when the specific torts are considered, it is evident that the maxim "de minimis non curat lex" can properly be applied. If, therefore, the action is trivial or vexatious, the courts may refuse to entertain it.112 But such cases must necessarily be rare, and the doctrine should not be lightly invoked.

107 HEEG v. LICHT, 80 N. Y. 579, 582, 36 Am. Rep. 654, Chapin Cas. Torts, 377.

108 As the right of navigating a river or traveling on a public highway, rights to which every citizen is entitled.

109 King v. Morris & E. R. Co., 18 N. J. Eq. 397, 399.

110 This is shown by the fact that the harm of which the plaintiff complains must be substantial and not merely fanciful. Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316; Sparhawk v. Union Pass. R. Co., 54 Pa. 401; Price v. Grantz, 118 Pa. 402, 11 Atl. 794, 4 Am. St. Rep. 601.

111 Francis v. Schoellkopf, 53 N. Y. 152. And see infra, p. 560. 112 Steinbach v. Hill, 25 Mich. 78; Price v. Grantz, 118 Pa. 402, 11 Atl. 794, 4 Am. St. Rep. 601. "It is not only to those who are greatly damnified by the illegal act of another to whom the law gives redress; but its vindication extends to every person who is damnified at all, unless, indeed, the loss sustained is so small as to be unnoticeable by force of the maxim, 'De minimis non curat lex.'" Beseman v. Pennsylvania R. Co., 50 N. J. Law, 235, 13 Atl. 164, per Beasley, J.

CHAPTER III

GENERAL PRINCIPLES (CONTINUED)—LIABILITY UNDER THE LEGAL RULES DEFINING CAUSE AND EFFECT

26. Proximate Cause.

27.

28.

29.

30.

31.

32.

33.

Intervention of Natural Force.

Fright and Mental Anguish.

Intervention of Voluntary Act or Neglect.

Intervention of Irresponsible Individual or Unconscious Instrument.

Arbitrary Rule in Certain Cases of Fire.

Concurring Cause.

Accompanying Condition.

84. Functions of Court and Jury.

PROXIMATE CAUSE

26. To determine responsibility, the law will consider the proximate and not the remote cause of an injury.

Philosophically speaking, the sum of all the antecedents of any event constitutes its cause.1 But it is obvious that such a rule could not be applied in determining legal responsibility without producing absurd results. "It were infinite," said Lord Bacon, "for the law to consider the causes of causes and their impulsions one upon another; therefore it contenteth itself with the immediate cause and judgeth of acts by that, without looking to any further degree." 2 "The maxim of the schoolmen, 'causa causantis causa est causati,' may be true; but it obviously leads into a labyrinth of refined and bewildering speculation, whither the law cannot attempt to follow."

1 Atchison, T. & S. F. R. Co. v. Bales, 16 Kan. 252, 256, per Valentine, J.

2 Bacon, Max. Reg. 1, quoted in Marble v. City of Worcester, 4 Gray (Mass.) 395, 411.

3 "The cause of the thing causing is the cause of the thing caused." 4 Gilman v. Noyes, 57 N. H. 629, per Cushing, J.

The following abridged news item suggests the difficulties which would be encountered "if the cause of the thing causing" were to

In a sense, "the true rule, broadly stated, is that the wrongdoer is liable for the damage which he causes by his misconduct. But this rule must be practicable and reasonable, and hence it has its limitations." A man's responsibility "must end somewhere." Hence the maxim, "Causa proxima nor remota spectatur." While this principle is universally accepted, its application is frequently attended with considerable difficulty, and it cannot be said that the tests which have been applied are entirely satisfactory, however proper the final results of the decisions themselves may have been.

be sought without restriction. Initials are substituted for names: A., the janitor of Graham avenue, Brooklyn, having a sore hand, asked B. to shovel the snow from the roof. B. started to do so. C., a tenant, stuck his head out of the window and received a shovelful in his face. He went to the roof and engaged in a fight with B. D., another tenant, heard the disturbance and fired his revolver out of the window. The bullet just missed E., a woman on the lower floor, and she cried, "Fight!" F., in the street, heard her and misunderstanding her, called, "Fire!" G., hearing F., turned in a fire alarm. The engine driven by H. dashed through the street in response and grazed a carriage driven by I. I.'s horse became frightened, ran away, and injured J. Query: Is A. to be held liable to J. on the theory that, without his request to B., the injury would never have occurred? If so, why not go back still further and hold the real estate agent, who appointed A., and the owner, who appointed the agent, and, for that matter, the parents of A., who, being responsible for the latter's existence, are in one sense a cause? Or why stop short with them?

5 Ehrgott v. Mayor, etc., of City of New York, 96 N. Y. 264, 281, 48 Am. Rep. 622, per Earl, J.

6 Hoag v. Lake Shore & M. S. R. Co., 85 Pa. 293, 298, 27 Am. Rep. 653, per Paxson, J.

7 The proximate and not the remote cause is to be considered. "It is impossible by any general rule to draw a line between those injurious causes of damages which the law regards as sufficiently proximate and those which are too remote to be the foundation of an action." Scott v. Hunter, 46 Pa. 192, 195, 84 Am. Dec. 542, per Strong, J. Each case must be decided "largely upon the special facts belonging to it, and often upon the very nicest discriminations." Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 52, 19 L. Ed. 65, per Miller, J. "The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it." MILWAUKEE & ST. P. R. CO. v. KELLOGG, 94 U. S. 469, 474, 24 L. Ed. 256, Chapin Cas. Torts, 31, per Strong, J.

Probably the most frequently cited statement is that of Justice Strong in Milwaukee & St. P. R. Co. v. Kellogg." It was there said: "The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous. succession of events, so linked together as to make a natural whole; or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."

Now, it will be observed that in the foregoing quotation two tests are laid down: First, whether there was a continuous succession of events; and, second, whether the injury was the natural and probable consequence which should have been foreseen. The first, while the better, is open to criticism, in that the court omitted to define the nature of the intervening cause. The second is open to the serious objection that it leads to an inference that the precise form of injury should have been foreseen, whereas it is sufficient that a reasonable man must have anticipated that some injury would have resulted, although its exact nature could not previously have been defined.10 Hence, where the latter rule has been adopted, it has often been limited by the further statement that it "is not to be understood as requiring that the particular result might have been foreseen, for if the consequences follow in unbroken sequence from the wrong to the injury without an intervening, efficient cause, it is sufficient if, at the time of the negligence, the wrongdoer might by the exercise of ordi

9 MILWAUKEE & ST. P. R. CO. v. KELLOGG, 94 U. S. 469, 474, 24 L. Ed. 256, Chapin Cas. Torts, 31.

10 See "Torts," 38 Cyc. 444, where the author has collated many decisions.

nary care have foreseen that some injury might result from his negligence." 11

From what has been said it necessarily appears that neither time nor distance is essentially a controlling element in determining whether a certain cause is the proximate cause.12 Nor, as will be seen hereafter, is it required that the proximate cause be the sole cause.

INTERVENTION OF NATURAL FORCE

27. The sequence of events is not broken by the intervention of an act of nature occurring while the resulting operation of the wrongful act or neglect is effective.

In one of the earlier cases 18 the defendant's vessel struck upon a shoal through the negligence of the captain and crew. It was blowing hard, all control over the ship was lost, and through the action of the wind and tide it was carried against and injured plaintiff's sea wall. Manifestly the proximate cause of the injury was the negligent grounding. Neither wind nor tide could be considered to be intervening factors

11 Pullman Palace Car Co. v. Laack, 143 Ill. 242, 260, 32 N. E. 285, 18 L. R. A. 215; Louisville & J. Ferry Co. v. Nolan, 135 Ind. 60, 34 N. E. 710; Hill v. Winsor, 118 Mass. 251; Ehrgott v. Mayor, etc., of City of New York, 96 N. Y. 264, 48 Am. Rep. 622; Drum v. Miller, 135 N. C. 204, 47 S. E. 421, 65 L. R. A. 890, 102 Am. St. Rep. 528; Smith v. London, etc., R. Co., L. R. 6 C. P. 14, 40 L. J. C. P. 21, 23 L. T. Rep. N. S. 678, 19 Wkly. Rep. 230.

12 Wills v. Ashland Light, Power & St. Ry. Co., 108 Wis. 255, 84 N. W. 998. Where a rotten stump was set on fire by the negligence of the railroad company, it was held that "the fact that the fire smouldered awhile in the stump, and, after it was supposed to have been extinguished, broke out again the next day, while it makes the conclusion less obvious that the damage was done by the same fire, does not interpose any new cause or enable the court to say as matter of law that the causal connection was broken." Haverly v. State Line & S. R. Co., 135 Pa. 50, 58, 19 Atl. 1013, 20 Am. St. Rep. 848.

13 Romney Marsh v. Trinity House, L. R. 5 Exch. 204, 39 L. J. Exch. 163, 22 L. T. Rep. N. S. 446, 18 Wkly. Rep. 869, affirmed L. R. 7 Exch. 247, 41 L. J. Exch. 106, 20 Wkly. Rep. 952.