impose a penalty upon the person who acted, or failed to act. That which went before the indicated act or came after the designated injury is as completely outside the scope of inquiry of the courts as the aurora borealis or the mountains of the moon.

Then, too, the discussion of "cause" as found in the opinions of the courts, is misleading and perplexing. It is obvious that the courts are not talking of causes in a strictly scientific sense. The fact that they can consider an omission to be a cause shows this conclusively, it is submitted. For, an omission is a failure to act. And most obviously, a non-doing cannot sturt anything. At most, it simply allows that which has been started to go on. An omission may fail to prevent something from occuring, but it does not make anything happen. The law may decide, for varying reasons, to hold the person who failed to act, accountable for the consequences which he allowed to continue, but that is a totally different thing from saying that the omission "caused," that it produced, or was a factor in the making of those consequences. Omissions cannot be causes. To hold othe: wise, it is submitted, is muddy thinking.

Acts, of course, can be causes. They do make things happen. Without them there would be no consequences, no results. Yet the courts here are obviously not using the word "cause" in the way that the physical scientist uses it. What the courts reaily mean when they say that an act, A, is the cause of the injury, B, is that A is a factor which contributed toward the incurring of L. For example: X stretches a wire from a telegraph pole, which stands by the side of a country road, to a fence (enclosing a farm), that is three feet away from the pole. A horse, driven by Y, runs away, swerves from the road, and throws the carriage to one side. A front wheel catches in the wire and, when the carriage is overturned, Y is thrown out and injured.5 In that case it

(5) Erbehard V. Glasco Mutual Telephone Assoc., 139 Pac. Rep. 416.

was held that the act of X in stringing the wire without proper authority so to do, was a cause of the injury to Y. It is certainly obvious that here X did nothing to Y. He simply created an illegal situation, which situation was a factor that contributed, in part, to the injury sustained by Y. When the courts say "cause," they mean "contributing factor."

Such contributing factors are, of course, innumerable. Yet injuries are brough: about by only two general classes of factors. These are passive situations and active forces. By a passive situation I mean something which of itself would never harm anyone or anything. A person or his property must be brought into contact with it before an injury can occur to him or it. An active force, on the other hand, is something that impinges upon the person or thing to his or its hurt. An example of a passive situation is a hole in the sidewalk. It can stay there forever, but until someone steps into it, it will not be a factor contributing, say, to the sustaining of a broken ankle. An active force, for example, is a traveling crane, the chains of which hit a man and knock him down. It is usually a moving thing or power. For A, then, to be the cause of an injury to B, he must either create a passive situation or else let loose an active force (or fail to do so when such omissions are forbidden).

But "causes" may be looked at from another angle. We can ask the question: How did A contribute to the injury of B? That is, did A drive B into danger or attract him toward it? Did he direct an active force against B, or did he drive him into a dangerous situation?

The cases show that factors may contribute to injuries in the following general

ways:

1. They may impinge upon B. Such factors are usually moving objects or active forces. They strike or impinge upon the person or property of B. B does not need to act at all. He is the passive recipient

of the injury. For example. A shoots B, although B has done nothing to provoke the shooting. He is the struck party. A is the striking party.

Using the word "cause," as the courts do, we may call such a factor an impinging

cause.

An

2. Secondly, the factors may drive the injured party into danger. This may be done either by forcing him directly into the situation or power that hurts him, or by creating dangerous alternatives, the avoidance of one of which causes him to be hurt by coming into contact with the other. illustration of dangerous alternatives would be this. A negligently drives an automobile in such wise that it is heading for a dangerous cliff. B, a passenger, knowing that A is drunk, and fearing that the machine will go over the cliff, jumps from the automobile, strikes against a tree and is hurt. The alternatives presented arouse the instinct of self- or race-preservation, so that B in trying to get out of one danger jumps into. another.

Such a factor we may call a propelling

cause.

3. A third method of injuring another is by attracting him into the danger. Such a factor is usually a situation which is dangerous, or which may easily become dangerous. It may arouse physical instincts or emotional impulses. It may appeal to the senses or arouse the higher sensibilities.

Such a factor we may call an attracting

cause.

This cause is the basis of the doctrine of "attractive nuisance," but there is no reason why it should be applied only to cases where children are involved, as that doctrine is, for adults are as much attracted to dangerous places as children are. So, too, are animals, as is shown by the fact that traps are baited to catch them. Natural objects also pull upon one another, as, for example, wires attracting electricity; certain salts attracting moisture. The attraction may be physical or psychical, but in either case the

injured party is drawn toward the dangerous thing or place.

4. Another method of producing an injury is by starting or arousing forces which react upon oneself to one's own hurt.

Such a factor may be called a circular

cause.

C. Proximate Cause-When it has been determined that a given act or omission is a factor contributing to a designated injury, it must be further determined, before lia

bility can be attached to that factor, whether the factor is not merely a cause, but is the proximate cause of the injury. The idea is this: Each injury is the result of many contributing factors. Some of them are trivial, others are slight, and others may be of considerable importance, in that they are largely responsible for the injury. Then, too, they may be remote in time or distant in space from the time and place where the injury was incurred, and as a matter of historical growth, the rule is that causa proxima non remota spectatur. It must be confessed that the language of the courts in discussing this matter is far from satisfactory, as it is far from clear. The courts constantly speak of the difficulties of applying the rules of law which govern proximate causation and at the same time say that the rules themselves are quite simple and easily to be understood. But, to my mind, the difficulty really exists in this. The rules themselves have not been made clearly explicit. Nor have their functions been definitely determined. An attempt will be made later to present a method of procedure which will be clear and simple, but at present it must be conceded that the cases present a method of procedure which, though most complex, is followed, at least in theory, if not in practice, and which needs to be understood. The rule of law we have already stated; liability will be attached only to a proximate and not to a remote cause of an injury. To find out whether a given factor is a proximate cause or not, two rules of procedure are laid down. These

are:

1. If an injury is the natural and probable consequence of an act, or omission, then that act, or omission, is the proximate cause of the injury.

2. An injury is the natural and probable consequence of an act, or omission, if at the time the act, or omission, was committed a reasonable man could have foreseen that the injury would result from that act or omission.

After all the evidence is in and the jury has received its instructions from the court, the jury proceeds, must proceed, if it is to follow its instructions, along the following lines. By an act of imagination it transports itself to a time just prior to the moment when the defendant performs his act or omission. Then it focuses its attention upon that imaginary abstract personage known as the "ordinary prudent, reasonable man," who is not the defendant, nor like one of the jury, nor all the jury put together, nor any particular kind or type of man, and inquires whether this figment of the imagination could have foreseen that such an injury would have resulted from the defendant's act. If this Ideal Man could have foreseen the injury, then the defendant is deemed to be the proximate cause of the plaintiff's injury. It is not necessary, however, that the reasonable man should foresee that the exact injury would occur. It is enough if he can foresee that a general class of injuries like that in the case at bar would occur. Nor is it necessary that extraordinary, unusual classes of injuries should be foreseen. Only the ordinary, usual kind of injury need be foreseen.

ent of the act or omission of the defendant, that the question does come up. When there is an intervention of a force of an animal, the person injured, a third or fourth, etc., person, or of a force in nature, the question is this:

Could a reasonable man, acting prudently, have foreseen the incoming of this force and that it would produce the class of injuries under which this particular injury must be subsumed?

If this question is answered in the affirmative, then the defendant is deemed to be the proximate cause of the plaintiff's injury.

This question is answered by the jury, who have before them all the evidence. They know what the act, or omission, was; the series of events which followed it; the intervention of other series of events and causes; the confluence or non-confluence of these series of events; the incurring of the injury and the effect of such incurrence.

The first thing to note is that the injury must create an imaginary character and then must treat him as a real character. Each juror must not place himself in the place of the defendant; nor must he put the “reasonable" man in his own place; nor must he ask whether the defendant could have foreseen the injury; nor must he treat the Ideal Man as though he were the defendant. The "reasonable" man is not like any particular person. He is just an abstraction. And this indefinite, intangible, nonexistent abstraction must be conceived as being in a definite, specific, real situation. and to be acting in that situation.

If I am correct in this statement, it then is obvious that the jury is called upon to do the impossible. The "reasonable, prudent man" is in the last analysis the juror himself. The juror's own experiences determine what the abilities of the Ideal Man shall be. The juror cannot deal abstractedly with the defendant. He actually does

imputes to the latter his own powers and abilities. The twelve jurors, by the time. the verdict is ready to be handed in to the court, have convinced each other that each of them, had he been in the place of the defendant, could have foreseen or not foreseen the injury; and that, therefore, the defendant could and should have done the same thing. All that the juror can do, at the most, would be to place himself in the position of the defendant and then by negating (ignoring, forgetting, blotting out), the existence of the injury, try by the use of imagination and conjecture to find the incoming of the intervening forces and the occurrence of the class of injuries to which the particular injury belonged. It would be a fruitless quest. For these reasons:

1. The juror does not know what he is hunting for. He cannot know, for at the time the defendant committed his act the injury was not in existence. You cannot foresee the existent. The very meaning of the word "foresee" (anticipate, predict, conjecture, guess) shows that the object or event that is foreseen is non-existent at the time it is foreseen. In order to be certain that he has foreseen this injury, the juror would have to foresee all the possible classes of injuries that there may be or could come into existence. This would take superhuman foresight and ought not to be expected of any ordinary man.

2. The preceding section assumes that the ordinary man, as represented by the juror, can negate the existence of the injury which has once been presented to his knowledge. But this assumption is a false one. For, when a fact that been impressed upon a man's consciousness; when he has been made vividly aware of the existence of an object or event; it is practically impossible for him to obliterate that impression in a short time and in many cases it is not possible at all. A few simple experiments will make this apparent.

(a) Think of George Washington for five minutes and do not allow these things to

come into your consciousness: 1. Crossing the Delaware; 2. The Revolutionary War. (b) Think of Lincoln for a few minutes. and avoid thinking of: 1. Emancipation Proclamation; 2. Slavery; 3. Assassination; 4. Civil War. (c) Think of Caesar and negate: 1. Omnia Gallia, etc. ; 2. "Friends, Romans, Countrymen," etc. (d) Think of John L. Sullivan and negate: "Prize-fighter;" of Bob Fitzsimmons and negate: "Solar plexus punch;" of J. J. Corbett and negate: "Pompadour hair." (e) Think of football and negate: 1. Touchdown. (f) Of the great war, and negate the Kaiser, the Fourteen Points, the League of Nations, "cooties,"

etc.

Many other examples could be given, but these will suffice. All of them show that when two things have been vividly connected they can seldom, if ever, be separated again in our thinking. This holds true of law courts, I take it, as of ordinary civil life. The jury for days, and sometimes weeks, have had the act and the injury presented to them as inevitably connected. The two are presented in close association. When they retire to consider their verdict, these two things are vividly in their minds. They can't, therefore, negate the injury and treat it as though it had never existed. Nor can they look at the act uninfluenced by the existence of the injury.

At this point it can be urged that the jury does not need to negate the injury; that, on the contrary, they are supposed to consider it as one of the factors in the case. To this I would reply that in such a case the doctrine of foresight is a misnomer. It should be called the doctrine of hindsight. The jury is practically told not to start with the act and see if it can work forward to the injury through their imagination; but to start with the injury and to think their way back to the act if they can. Or, at the most, the jury may be told to work from both ends to the middle. And I venture to believe that the jury in fact does work, not by imaginative or cognitive conjecture, but by simple inspec

hurting a person are as follows:

If my analysis and belief are correct, and the jury really does look at the particular facts before it when it decides that a given act or omission was the proximate cause of an alleged injury, then it would be of considerable practical value if the law could be stated in such objective terms that the jury would have a working guide to aid them in their deliberations and help them reach their findings. Fortunately, the cases do yield such legal principles, though the courts, for some reason or other, have as yet not enunciated them, but seem to have preferred to use the formula "of natural and probable consequences" without question or really adequate examination. What, then, are these legal principles?

There are five general ways in which one person can injure another. These are:

1. By a direct application of force; 2. By acting in conjunction with a natural force; 3 By acting in conjunction with the act of an animal; 4. By acting in conjunction with the activity of the injured individual himself; 5. By acting in conjunction with the act of a third person.

By "in conjunction with" I mean both "at the same time" as the animal, force of nature, injured individual or third person, act, and "before" they act. That is, the activity. of the force of nature, animal, etc., can be concurrent with the act of the person who is saddled with the liability or it may intervene between the act of that person and the injury to the hurt individual. The legal

1. A direct application of force is always a proximate cause of any injury that that force might produce. These cases show many ways in which A might apply an injurying force to B. For example. i. A might create or induce that which caused the injury. ii. A might create a conduit for a dangerous force along which the force that injured B traveled. iii. A might apply force to an object which forced another object to impinge upon B. iv. A might accelerate the activity of a force or object that drives an object against B.10 hurt B. v. A might release a force that

2. When an act creates or an omission fails to change a situation, and that situation contributes, through, by means of, or in conjunction with, an intervening force to the injury of a person, that act or omission is the proximate cause of the injury. Examples of this are: i. A prevents B from going where he wishes and compels him to go elsewhere and in that place the force of nature hurts B. ii. A creates a situation or omits to change it so that a force of nature is permitted to hurt B.12 iii. A fails to

(6) State v. O'Brien, 81 Ia. 88; Armstrong v. Montgomery Street Railway Co., 123 Ala. 233; Gray v. Chicago & Northwestern Railway Co., 153 Wis. 637; Lynn Gas & Electric Co. v. Meriden Insurance Co., 158 Mass. 570; Bunting v. Hogsett, 139 Pa. 363; Smith v. London & Southwestern R. R. Co., L. R. 6 C. P. 14; Hoyt v. Jeffers, 30 Mich. 181. Ryan v. N. Y. Central R. R., 35 N. Y. 210, contra.

(7) Meriden Lynn Gas and Electric Co. v. Insurance Co., 158 Mass. 570; The G. R. Booth, 171 U. S. 450.

(8) Hill v. Winsor. 118 Mass. 251.

(9) McCahill V. New York Transportation Co.. 201 N. Y. 221.

(10) Rigdon v. Temple Water Works Co., 11 Tex. Civ. App. 542.

(11) Scott v. Hunter, 46 Pa. 1921; Derry v. Flinter, 118 Mass. 131; Fox v. Boston and Maine R. R. Co., 148 Mass. 220 (which case was decided on the ground of a special contract, however).

(12) Dickinson v. Boyle, 17 Pick. 78; Pittsburg v. Grier, 10 Harris 54; Jackson v. Wisconsin Telephone Co., 82 Wis. 243; Benedict Pineapple Co. v. The Atlantic Coast Line, 55 Fla. 514; The Lords Bailiff-Jurats of Romney Marsh v.