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https://cpb-us-e1.wpmucdn.com/blogs.cornell.edu/dist/5/5699/files/2015/07/11-Palsgraf-v-LI-RR-qif42o.pdf Court of Appeals of New York.
PALSGRAF
v.
LONG ISLAND R. CO.
May 29, 1928.
CARDOZO, C. J.
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 forward to help 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. 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.’ 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. 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 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, the observance of which would have averted or
avoided the injury.’
A different conclusion will involve us, and swiftly too, in a
maze of contradictions. A guard stumbles over a package which
has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary
vigilance, the bundle is abandoned waste, which may be kicked or
trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so
far as the distant passenger is concerned, when the guard stumbles
over a valise which a truckman or a porter has left upon the walk?
The passenger far away, if the victim of a wrong at all, has a cause
of action, not derivative, but original and primary. His claim to be
protected against invasion of his bodily security is neither greater
nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been
violated, are not even of the same order. The man was not injured
in his person nor even put in danger. The purpose of the act, as
well as its effect, was to make his person safe. It there was a wrong
to him at all, which may very well be doubted it was a wrong to a
property interest only, the safety of his package. Out of this wrong
to property, which threatened injury to nothing else, there has 2
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 accepted as the norm of conduct, the customary standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting meanings of such words as ‘wrong’ and ‘wrongful,’ and shares their instability. What the plaintiff must show is ‘a wrong’ to herself; i. e.,
a violation of her own right, and not merely a wrong to some one
else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to
any one. We are told that one who drives at reckless speed through
a crowded city street is guilty of a negligent act and therefore of a
wrongful one, irrespective of the consequences. Negligent the act
is, and wrongful in the sense that it is unsocial, but wrongful and
unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be
committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to
be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. This does not mean, of
course, that 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.’ 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 to-day, and much oftener in
earlier stages of the law, one acts sometimes at one’s peril. 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. These cases aside, wrong is defined in terms
of the natural or probable, at least when unintentional. 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. 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 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. …
The law of causation, remote or proximate, is thus foreign to 3
the case before us. The question of liability is always anterior to
the question of the measure of the consequences that 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 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. There is room for 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 unforeseeable 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.
The judgment of the Appellate Division and that of the Trial
Term should be reversed, and the complaint dismissed, with costs
in all courts.
ANDREWS, J. (dissenting).
Assisting a passenger to board a train, the defendant’s servant
negligently knocked a package from his arms. It fell between the
platform and the cars. Of its contents the servant knew and could
know nothing. A violent explosion followed. The concussion broke
some scales standing a considerable distance away. In falling, they
injured the plaintiff, an intending passenger.
Upon these facts, may she recover the damages she has suffered in an action brought against the master? The result we shall
reach depends upon our theory as to the nature of negligence. Is 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 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 one’s self 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
present purposes it sufficiently describes that average of conduct
that society requires of its members.
There must be both the act or the omission, and the right. It is
the act itself, not the intent of the actor, that is important. In criminal law both the intent and the result are to be considered. Intent
again is material in tort actions, where punitive damages are
sought, dependent on actual malice-not one merely reckless conduct. But here neither insanity nor infancy lessens responsibility.
As has been said, except in cases of contributory negligence,
there must be rights which are or may be affected. Often though
injury has occurred, no rights of him who suffers have been
touched. A licensee or trespasser upon my land has no claim to
affirmative care on my part that the land be made safe. 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. An unborn child may not demand immunity from personal
harm.
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
not which is owed to the plaintiff himself and not merely to oth-4
ers.’ 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 we strike an approaching car or miss it by an
inch. The act itself is wrongful. If 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. 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 &
B. R. Co., 172 Mass. 488, 491, 52 N. E. 747, 748 ( 43 L. R. A.
832, 70 Am. St. Rep. 298).
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.
It may well be that there is no such thing as negligence in the
abstract. ‘Proof of negligence in the air, so to speak, will not do.’
In an empty world negligence would not exist. It does involve a
relationship between man and his fellows, but not merely a relationship between man and those whom he might reasonably expect
his act would injure; rather, a relationship 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 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 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.
…
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 be expected to result,
but he also who is in fact injured, even if he be outside what would
generally be thought the danger zone. There needs be duty due the
one complaining, but this is not a duty to a particular individual
because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all
those in fact injured may complain. ….
If this be so, we do not have a plaintiff suing by ‘derivation or
succession.’ Her action is original and primary. Her claim is for a
breach of duty to herself-not that she is subrogated to any right of
action of the owner of the parcel or of a passenger standing at the
scene of the explosion.
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 out unlawful act, we are liable for the consequences. It does not matter
that they are unusual, unexpected, unforeseen, and unforeseeable.
But there is one limitation. The damages must be so connected 5
with the negligence that the latter may be said to be the proximate
cause of the former.
These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as
does the existence of negligence itself. Any philosophical doctrine
of causation does not help us. A boy throws a stone into a pond.
The ripples spread. The water level rises. The history of that pond
is altered to all eternity. It will be altered by other causes also. Yet
it will be forever the resultant of all causes combined. Each one
will have an influence. How great only omniscience can say. You
may speak of a chain, or, if you please, a net. An analogy is of little aid. Each cause brings about future 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.
Should analogy 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
creek, brown swamp water flows from the left. Later, from the
right comes water stained by its clay bed. The three may remain
for a space, sharply divided. But at last inevitably no trace of separation remains. They are so commingled that all distinction is lost.
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.
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 of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning
haystack set on fire my house and my neighbor’s. I may recover
from a negligent railroad He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was
drawn just where it was, but drawn somewhere it had to be. We
said the act of the railroad was not the proximate cause of our
neighbor’s fire. Cause it surely was. The words we used were simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot
say the stream comes from any one source.
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
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.
But the chauffeur, being negligent in risking the collision, his
belief that the scope of the harm he might do would be limited is
immaterial. His act unreasonably jeopardized the safety of any one
who might be affected by it. C’s injury and that of the baby were
directly traceable to the collision. Without that, the injury would
not have happened. C had the right to sit in his office, secure from 6
such dangers. The baby was entitled to use the sidewalk with reasonable safety.
The true theory is, it seems to me, that the injury to C, if in
truth he is to be denied recovery, and the injury to the baby, is that
their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe
would be the result of his conduct, but what the prudent would
foresee, may have a bearing-may have some bearing, for the problem of proximate cause is not to be solved by any one consideration. It is all a question of expediency. There are no fixed rules to
govern our judgment. There are simply matters of which we may
take account. We have in a somewhat different connection spoken
of ‘the stream of events.’ We have asked whether that stream was
deflected-whether it was forced into new and unexpected channels.
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 the result? Or, by the exercise of
prudent foresight, could the result be foreseen? Is the result too
remote from the cause, and here we consider remoteness in time
and space. ..Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned, the firing of
a shed is a fairly direct consequence. Many things contribute to the
spread of the conflagration-the force of the wind, the direction and
width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must
as best we can.
Once again, it is all a question of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case
that will be practical and in keeping with the general understanding
of mankind.
Here another question must be answered. In the case supposed, it is said, and said correctly, that the chauffeur is liable for
the direct effect of the explosion, although he had no reason to
suppose it would follow a collision. ‘The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur’s negligence from being in
law the cause of 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 speak, assumes prevision of the explosion, for the
immediate results of which, at least, the chauffeur is responsible.
It may be said this is unjust. Why? In fairness he should make
good every injury flowing from his negligence. Not because of
tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled
by the spark, or the explosion. We trace the consequences, not indefinitely, but to a certain point. And to aid us in fixing that point
we ask what might ordinarily be expected to follow the fire or the
explosion.
This last suggestion is the factor which must determine the
case before us. The act upon which defendant’s liability rests is
knocking an apparently harmless package onto the platform. The
act was negligent. For its proximate consequences the defendant is 7
liable. If its contents were broken, to the owner; if it fell upon and
crushed a passenger’s foot, then to him; if it exploded and injured
one in the 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 25 or 30 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 turn fell upon
her. There was no remoteness in time, little in space. And surely,
given such an explosion as here, it needed no great foresight to
predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff.
Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no
one could say. But injury in some form was most probable.
Under these circumstances I cannot say as a matter of law that
the plaintiff’s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so
charge. No request was made to submit the matter to the jury as a
question of fact, even would that have been proper upon the record
before us.
The judgment appealed from should be affirmed, with costs