Page:Harvard Law Review Volume 8.djvu/403

A GENERAL ANALYSIS OF TORT-RELATIONS. 387 as in Bentham's well-known illustration, sees a man drowning and with power to save him fails to do so, or, as in the Roman Law glosses, sees an absent neighbor's windows open and perceives with- out preventing the deluge of the exposed rooms by a rain-storm, may stand idle and laugh with civil impunity at the harm which ensues. So also, one who is unwillingly carried upon another's land is not guilty of a trespass. We may or may not quarrel with this morality, but the notion is now a racial feature of our legal sys- tem. The application of it gives rise to little dispute, but there are one or two exceptions of policy which are to be noted, (i) The possession or ownership of real property often fixes a responsi- bility for harm where not a hand has been lifted by the defendant; thus, one who acquires land on which is a noisome pond or a tottering building may become responsible for harm caused thereby. Incidentally the distinction between owner and occupier may come into play. So also statutes fix civil responsibility upon municipal corporations for defective ways, etc., and statutes sometimes make the owners of buildings liable for disability caused by the sale of intoxicating liquors therein, though no active initiation can be brought home to the defendant. (2) There is perhaps a disposi- tion to put a criminal responsibility upon those who by nonfeasance allow others to suffer bodily harm, where the circumstances place the defendant in a peculiar relation, — as where a brother allows a sister in the same house to starve.^ But whether a civil respon- sibility should be imposed is not yet answered in the affirmative. 3. But one is not made responsible even for every harm ac- tively caused by him. To quote Mr. Justice Holmes again : — " If running down a man is a trespass when the accident can be referred to the act of spurring, why is it not a tort in every case, as was argued in Vincent v. Stinehaur, seeing that it can always be referred more remotely to his act of mounting and taking the horse out ? The reason is that if the intervening events are such that no foresight could have been ex- pected to look out for them, the defendant is not to blame for having failed to do so. . . . If this were not so, any act would be sufficient, how- ever remote, which set in motion or opened the door for a series of physi- cal consequences ending in damage. The requirement of an act is the requirement that the defendant should have made a choice. But the only necessary that he should have chosen the conduct which led to the harm. . . . The philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been," 1 R. V. Instan, L. R. '93, i Q. B. 450.