deceased, in full possession of his senses, caused either deliberately or negligently his own death, then he and not the person inflicting the wound is chargeable with the death, though the latter is indictable for an attempt to kill.' But where the deceased's negligence contributed to his death, such negligence is no defence, when either (1) it was one of the ordinary incidents of the conduct of a person in his situation; or (2) when the wound would otherwise have been fatal. And so, under similar circumstances, the negligence of an attendant physician or surgeon is no defence.3 It is enough if the wound induced the death. The same distinction may be followed in other cases of negligence. A carriage is driven recklessly along a road and kills a drunken man, who, if he were sober, could have got out of the way. The deceased's drunkenness is in this case no defence, because the defendant had no right to drive recklessly along the road. But if, though there may have been some negligence on the defendant's part (e. g., in the equipment of his car until I see a decision to the contrary 301, 1851; Brown v. State, 38 Tex. (by which it is presumed the learned 482, 1873; Williams v. State, 2 Tex. judge meant a decision of the Court App. 271, 1877; State v. Smith, 10 of Criminal Appeal) I shall hold that Nev. 106, 1875. a man is not criminally responsible for negligence for which he could not be responsible in an action." In R. v. Kew, 12 Cox C. C. 355, 1872, Byles, J., said he would reserve the question if required; but the case never came before the Court for Crown Cases Reserved. It was subsequently held by Denman, J., in R. v. Desvignes (Law Times, vol. lxx. p. 76), that the current of authority was that in criminal cases contributory negligence is no defence. But this case, also, never came before the judges as a body; and it is not to be supposed that it will be ultimately held that the mere fact that there was some antecedent negligence on the defendant's part will make him liable for manslaughter when the death was brought about by the reckless misconduct of the deceased. 2 Supra, & 157. See infra, ?? 340, 363; R. v. Rew, J. Kel. 26; McAllister v. State, 17 Ala. 434, 1849. In R. v. Holland, 2 M. & R. 357, 1843, the deceased had been severely cut with an iron instrument across one of his fingers, and had refused to have it amputated, and at the end of a fortnight lock-jaw came on, and the finger was then amputated, but too late, and the lock-jaw ultimately caused death. The surgeon expressed the opinion that early amputation would probably have saved his life. Maule, J., held that a party inflicting a wound which ultimately becomes the cause of death, is guilty of murder, though life might have been preserved if the deceased had not refused relief. Supra, 157. 3 4 Supra, 157; Com. v. Fox, 7 Gray, 585, 1856; Bowles v. State, 58 Ala. 335, 1877. 5 Whart. on Neg. 22 300 et seq. riage) the injury was primarily due to the deceased having flung himself recklessly in the defendant's path, such contributory negligence is a defence. Contribu tory negli gence no defence when such negligence was the re sult of defendant's misconduct. 1 § 164. At the same time it is an equally familiar rule that a party cannot shield himself by setting up as a defence contributory negligence, the result of fright or paralysis, caused by his own misconduct. The same rule applies mutatis mutandis to neglect by physicians. He, therefore, who causes another, under influence of fright, to run into a river, from which drowning ensues, is responsible for the death. He who by like processes causes another to leave the house and to die in the frozen fields on a stormy night is in like manner responsible. He who causes another, under the effect of fright, to open his safe, cannot set up this submission as a defence. And the same distinction applies to the numerous cases already cited, in which a party, under fright, submits to spoliation or assault.5 On the other hand, it may be argued that an indictment does not lie against A. for killing B. when the death was the result of fright produced by mere threats, there being no such physical lesion as may be implied from any subsequent catastrophe or concussion induced by the fright. And so, although A. may die of a broken heart caused by the unkindness of B., B. is not on this ground indictable 1 Bowles v. State, 58 Ala. 335, 1877. See infra, 521; R. v. Pitts, C. & M. 284, 1841; R. v. Evans, 1 Russ. Cr. 651, 1812; R. v. Wager, cited Steph. Dig. C. L. art. 241 (5th ed.), 1864. L. 5. 7. D. ad Leg. Aquil. And if a person who has his clothes taken from him on a cold night is so numbed and enfeebled that he cannot seek refuge, and hence is frozen to death, the assailant is as liable for his death through feezing as he would be if the deceased had been tied to a stake in the open air in such a way that escape was impossible. L. 14. 1. D. 19. 5. See R. v. Martin, 11 Cox C. C. 136, 1869. The same rule was held to apply where a seaman, forced aloft when unfit for the work, falls from the mast and is drowned. U. S. v. Freeman, 4 Mason C. C. 505, 1825. As to indictment, see infra, ? 521. 3 Nixon v. People, 2 Scam. 267, 1840. See, also, R. v. Williamson, 1 Cox C. C. 97, 1846. Where the defendant chased with an axe a boy, who, in his fright, ran unconsciously against a cask of wine and broke it, the defendant was held liable for the injury thus incidentally produced. Vandenburg v. Truax, 4 Denio, 464, 1847. So a person thrown from a bridge into a rapid river may be able to swim, and if in full possession of his faculties to save himself; but if in the confusion and terror of the moment he loses his selfcommand and is drowned, the person 5 See supra, ?? 146-50; and see State throwing him in the water is liable. v. Hardie, 47 Iowa, 647, 1877. 4 U. S. v. Jones, 3 Wash. C. C. 209, 1821. for killing A. Undoubtedly there is moral guilt in such cases proportionate to the degree of malice. But there is no technical guilt which the law can punish, for the reason that the law has no test to measure the relation of cause and effect in matters purely psychological. How much of the terror or "broken-heartedness," for instance, was due to the patient's own folly or wrong? What legal proof is possible of such terror or "broken-heartedness? How can the death be, beyond reasonable doubt, traced to either? Hence it is that the law, when the case consists of these bald elements, declines to interpose.i leaf v. Illinois Cent. R. R., 29 Iowa, So where the defendant carelessly overloaded a ferry-boat, and where the to one side and upset the boat, in consequence of which A. was drowned, it was held that the carelessness of A. and the other passengers was no defence to an indictment for the manslaughter of A. R. v. Williamson, 1 Cox C. C. 97, 1846. 1 Suppose A., when on a coach, jumps off to avoid danger, acting unwisely in so doing, yet from confusion of mind produced by B.'s reckless driving? Or suppose that A., on a railway track, loses his presence of mind through the unexpected and irregular course of a train which is negligently driven; and suppose that, when thus confused, he unwisely but unintentionally runs into instead of passengers, in a sudden fright, rushed out of danger? Is A., in either of these cases, the juridical cause of an injury thus produced, or is B., the negligent driver or engineer, the cause? Certainly the latter; for A., on the assumption that he is at the time incapable of judging, is not a responsible independent agent, capable of breaking the causal connection between the defendant's negligence and the injury. It was B.'s negligence that put A. in this dangerous position, and thus forced him to make a choice between perilous alternatives when he was in a condition incapable of cool judgment; and B. is liable for the consequences. Whart. on Neg. 377; R. v. Longbottom, 3 Cox C. C. 439, 1849; Buel v. N. Y. Cent. R. R., 31 N. Y. 314, 1865; Frink v. Potter, 17 Ill. 406, 1856; Sears v. Dennis, 105 Mass. 310, 1870; Stevens v. Boxford, 10 Allen, 25, 1865; Babson v. Rockport, 101 Mass. 93, 1869; Indianapolis R. R. v. Carr, 35 Ind. 510, 1871; Green- Whart, on Neg. Yet we must remember that if the deceased, in encountering the danger, acted, not convulsively, but deliberately, and if, at the same time, the danger was not a natural and probable consequence of the defendant's misconduct, then the causal connection is broken. This view has been properly held to govern where a woman, not convulsively, or in fear, or through force, but of her own will, leaves her husband's house at night and is frozen to death; State v. Preslar, 3 Jones Law, (N. C.) 421, 1856; where a traveller voluntarily or negligently, and not in fear caused by the defendant, collides with a railway car; see 382; and where A., Prior neg ligence of party injured no defence ant by § 165. If I intrude negligently in a place where a dangerous but lawful business is conducted, I must bear the consequences if I am injured by machinery there placed. On the other hand, even against trespassers, no one can with impunity put in operation dangerous agencies without exerting in if defend- the control of such agencies the care usual to good business men under the circumstances. Thus, if A. is negligently on a road, B. cannot excuse himself for running A. down if by due diligence the collision could have been avoided by B. So, generally, it is no defence that the deceased or his companions by their own negligence contributed to the result, if that result was precipitated by the malicious or reckless misconduct of the defendant.2 proper caution could have avoided injury. Contributory negligence, it is to be added, is to be determined from the stand-point of the party to whom it is imputed.3 Persons leaving dangerous agencies where § 166. A party who places poison in such a position that in the ordinary course of things it is likely to be unconsciously and non-negligently taken by passers-by is liable for the consequences. But he is not responsible for the acts of an assassin, who, independently of him, takes and administers the poison to the deceased; for here again, though the preparing of the poison is a condition of the killing, it is not its juridical cause.5 they are likely to be unconsciously meddled with are responsi ble for the consequences. The master of a house who leaves powder unlawfully and carelessly on his premises is not liable for its negligent misuse by his servants, who are capable of judging as to the danger, though it would be otherwise if the powder were 6 on board of a ship, to get rid of B., with whom he was disputing about the payment of money, pushed away B.'s boat with his foot, and B., reaching out to lay hold of a barge to prevent his boat from drifting away, overbalanced himself and was drowned, A. was acquitted. R. v. Waters, 6 C. & P. 328, 1834. 1 R. v. Longbottom, 3 Cox C. C. 439, 1849; R. v. Swindall, 2 C. & K. 230, 1846. See R. v. Walker, 1 C. & P. 320, 1824; Whart. on Neg. ₫ 355. 2 See R. v. Kew, 12 Cox C. C. 355, 1872; 1 Green's C. R. 95; R. v. Longbottom, 3 Cox C. C. 439, 1849; R. v. Swindall, 2 C. & K. 230, 1846; R. v. 4 Supra, 133, 161; infra, & 206, 226, 346. See R. v. Cheverton, 2 F. & F. 833, 1840; R. v. Michael, 9 C. & P. 356, 1861; 2 M. C. C. 120; R. v. Chamberlain, 10 Cox C. C. 486, 1866; Harvey v. State, 40 Ind. 516, 1871. 5 See Com. v. Campbell, 7 Allen, 541, 1863; State v. Scates, 5 Jones, (N. C.) 420, 1857. Supra, 160. 6 R. v. Bennett, Bell C. C. 1; 8 Cox C. C. 74, 1858. left in a place frequented by children, who ignorantly meddled with it, and thereby produce damage; or if it were left in such a disguised state that a person of ordinary intelligence would not be able to detect its character; or if a dangerous substance were given to a party compulsorily.3 1 Whart. on Neg. 161. 2 See 1 Hale, 431. Infra, 346. Blackburn v. State, 23 Ohio St. 146, 1872. See infra, ?? 216, 226. and fell sick. Martin, the apothecary who had made the electuary, on being questioned about it, to clear himself took part of it and died. On this evi"If B.," as is argued in another dence a question arose whether Agnes work (Whart. on Neg. 91), "negli- Gore had committed murder; and the gently sells poison, under the guise of doubt was because Martin, of his own a beneficial drug, to A., he is liable will, without invitation or procurefor the injury done to A.; or to those ment of any, had not only eaten of the to whom A. innocently gives the electuary, but had, by stirring it, so poison. But suppose that A. has incorporated the poison with the elecground to suspect that the drug is tuary that it was the occasion of his poisonous, and then, instead of testing death. The judges resolved that the it, sells it or gives it to C.? Now, in prisoner was guilty of the murder of such a case there can be no question Martin, for the law conjoins the murthat A. is liable for the damage caused derous intention of Agnes in putting by his negligence. But if A. is un- the poison into the electuary to kill conscious of the mistake, and acts her husband with the event which merely as the unconscious agent of B., thence ensued: Quia eventus est qui then there is no causal connection be- ex causa sequitur, et dicuntur eventus tween A.'s agency and the injury, and quia ex causis eveniunt; and the stirB. is directly liable to C. Norton v. ring of the electuary by Martin, withSewall, 106 Mass. 143, 1870. Beyond out putting in the poison by Agnes, this it is not safe to go. It is true could not have been the cause of his that in a New York case, Thomas v. death. If Martin's trying the elecWinchester, 2 Selden, (6 N. Y.) 397, tuary was a natural and probable 1852, the liability was pushed still sequence of the prisoner's conduct, further; but wherever an intelligent then she could properly have been third party comes in, and negligently convicted, though certainly not for the passes the poison to another, this breaks the causal connection, and makes such intervening negligence the juridical cause." reason given by the judges. It makes no matter, however, whether this sequence be long or short. Poison, for instance, is introduced into a reservoir of water. The reservoir freezes, and remains frozen during winter. In the spring the ice melts, and the water flows through a series of channels until it is drank by a child, who is killed. Here there is a continuous natural sequence which, however long, A more difficult question arises when poison intended to kill A. is voluntarily taken by B., who has notice that the drink is suspected to be poisonous. Agnes Gore, in an old case (9 Co. 11; 1 Hale P. C. 50; Plowd. Com. 574), was proved to have mixed poison in an electuary, of which her husband presents an unbroken chain. See, also, and her father and another took part infra, 346. |