HALL - Some Observations On The Doctrine of Proximate Cause (1902)
HALL - Some Observations On The Doctrine of Proximate Cause (1902)
HALL - Some Observations On The Doctrine of Proximate Cause (1902)
541
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542 HAARVARD LAW REVIEW.
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THE DOCTRINE OF PROOXIzA TE CA USE. 543
ing meanings: (i) no meaning at all, (2) principal, (3) nearest, (4)
obvious. In many cases, however, and particularly in cases of
insurance contracts, the nearest cause in time and place is con-
sidered the proximate cause.
"The maxim causa proxima non remota spectatur is of importance to be
observed in these contracts. For it will be difficult,if not impossible, in
the case of successive misfortunes happeningto a ship from divers causes,
to make a just apportionmentof the injury to the peril; and as a general
rule, which, when understood, will produce equality in its application, to
attribute the loss to the last peril that affects the vessel, she having sur-
vived antecedent ones, is as safe and convenient as any which can be
suggested."1
And in an English case, Mr. Justice Willes said:
"In ascertaining the relative rights of the parties, you are not to
trouble yourself with distant causes, or to go into a metaphysicaldistinc-
tion between causes efficient and material and causes final; but you are
to look exclusively for the proximateand immediate cause of the loss." 2
It may indeed happen that two causes appear to be contempo-
raneous and efficient. In such a case the rule has been stated by
the Supreme Court of the United States 3 as follows: -
"When there is no order of succession in time, when there are two
concurrent causes of a loss, the predominating efficient one must be
regarded as the proximate when the damage done by each cannot be
distinguished."
In regard to another kind of contract, viz. Bills of Lading, it has
been observed by Broom :4-
" It should be noticed that exceptions in bills of lading are not con-
strued strictly according to the maxim, . . . but the efficient, or, as it is
sometimes called, the causa causans, is regarded to determine thc liability
of the slip-owner on his contract of affreightment."
Thus where the bill of lading contained an exception of accidents
or damage of the seas, rivers, and steam navigation of whatsoever
nature or kind soever, a ship-owner was held liable for loss of goods
1 Parker, C. J., in Rice v. Homer, i2 Mass. 230, 234 (i8I5). Cp. Shearman & Red-
field on Negligence, 5th ed. (I898) ?? 57-60. Cited infra.
2 Ionides v. Universal Marine Ins. Co., I4 C. B. N. S. 259, 289 (i863).
3 Howard Fire Ins. Co. v. Norwich, etc., Transportation Co., i2 Wall. I94, per
Strong, J., citing with approval Phillips on Insurance, II36, II37.
4 Legal Maxims, 6th ed. (1884), 2i6. This work treats generally of proximate
cause and Lord Bacon's Maxim on pp. 2I1-224.
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544 HARVA RD LAW RE'VIEW.
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THE DOCTRINE OF PROXIMA TE CAUSE. 545
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546 HARVARD LA W REVIEW.
the cause, but the proximate cause of the damage to the plaintiff...
We adhere to this old form of words, because, while it may not have
originally meant what is now intended, it is not immovably identified
with any other meaning, and is the form which has been so long in use
that its rejection would make unintelligible nearly all reported cases on
the question involved.2
"TIhe proximate cause of an event must be understood to be that which
in a natural and continuous sequence unbroken by any new, independent
cause produces that event and withotut which that event would not have
occurred.' Proximity in point of time or space, however, is no part of
the definition.4 That is of no importance except as it may afford evi-
dence for or against proximity of causation, that is, the proximate cause
which is nearest in the order of responsible causation.
" The proxima causa was originally the same as the causa causans or
cause necessarily producing the result. But the practical construction
of 'proximate cause ' by the courts has come to be the cause which natu-
rally led to and which might have been expected to be directly instru-
mental in producing the result. Ihe necessity for connecting an
injury with a responsible agent before compensation can be awarded has
led to the identification of the rule embodied in the maxim with another
legal principle which bears more directly upon the question of account-
ability, viz. that 'every man must be taken to contemplate the probable
consequences of the act he does.' 5 On the other hand, as we shall
point out elsewhere, 'wrongdoers are presumed not to contemplate
wrongdoing by others unless they are shown in fact and actually to have
contemplated it. Therefore, generally they are not liable if another
wrongdoer intervenes between their act and the result.' ' 6
Let us now examine a few cases to see how this definition is
applied practically.
In McDonald v. Snelling,7 one whose servant drove in the public
street so negligently as to collide with another carriage, thereby
1 Citing Kistner v. Indianapolis, ioo Ind. 210; Scheffer v. Railroad Co., I05 U. S.
249.
2 Citing Ehrgott v. N. Y., 96 N. Y. 264, 28I; Norwood v. Raleigh, III N. C. 236;
Florida R. Co. v. Williams, 37 Fla. 406; Davis v. R. R. Co., 67 N. W. (Wis.) I67.
3 Taylor v. Baldwin, 78 Cal. 517; Hoag v. Lake Shore, etc., Ry. Co., 85 Pa. St.
293; Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469; Putnam v. Broadway, etc.,
R. R. Co., 55 N. Y. io8; Sharp v. Powell, L. R. 7 C. P. 253; Pa. R. R. Co. v. Kerr,
62 Pa. St. 353; West Mahoney Transp. Co. v. Wagner, iI6 Pa. St. 344; Ins. Co. v.
Brown, 95 U. S. II7; Topsham v. Lisbon, 65 Me. 449; State v. Manchester R. R.
Co., 52 N. H. 552. See also Cooley on Torts 69; Addison on Torts, sec. 6.
4 48 Minn. 134.
5 36 Am. State Rep. 807, 809.
6 Holmes, J., in Hayes v. Hyde Park, 153 Mass. 514.
14 Allen 290. Compare Marble v. Worcester, p. 544, note 4, sug5ra, where the
facts were nearly identical.
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THE DOCTRINE OF PROXIMA TE CA USE. 547
causing the horse attached to the latter to take fright and run
away, was held liable to a person injured by the runaway horse in
its flight.
We see at once here that " proximate cause" has no longer the
same meaning as in marine insurance contracts. It now means that
of which the results are the " natural and probable effect," in the
sense that a reasonable man might properly foresee them.' Thus
in this case the court held a man driving with a careless servant
might be reasonably expected to foresee that some trouble of the
sort which did happen, might happen. This difference is noted in
the opinion of Foster, J., in the case last cited.2 He says:
" Perhaps the truth may be that a maxim couched in terms so general
as to be necessarilysomewhat indefinitehas been indiscriminatelyapplied
to differentclasses of cases in different senses, or at least without exact-
ness and precision, and that this is the real explanation of the circum-
stance that causajproxima in suits for damages at common law extends
to the natural and probableconsequences of a breachof contract or tort;
while in insurance cases and actions on our highway statute it is limlited
to the immediatelyoperating cause of the loss or damage. If this be so,
the frequent reference to the maxim in cases like the present is not par-
ticularly useful, and certainly not conducive either to an accurate state-
ment of principles or to uniform and intelligible results."3
It is claimed that a different rule prevails as to malicious torts
from that which applies in the case of ordinary torts.4 A recent
writer says:5
1 " One who violates duty owed to others or commits a tortious or wrongfully neg-
ligent act is liable, not only for those injuries which are the direct and immediate
consequences of his act, but for such consequential injuries as, according to common
experience, are likely to and in fact do, result from his act." Devens, J., in Smith-
hurst v. Independent Cong. Church, 148 Mass. 26I, citing McDonald v. Snelling, 94
Allen 290; Wellington v. Downer Kerosene Oil Co., I04 Mass. 64; Metallic Casting
Co. v. Fitchburg R. R., 109 Mass. 277; Derry v. Flintner, io8 Mass. I3I.
In the Cong. Church case snow from a roof fell on a horse causing a wagon to
start which injured a passer-by.
2 McDonald v. Snelling, 14 Allen 290, 294.
3 Compare Thomas v. Winchester, 2 Selden 397, where a druggist who carelessly
labelled a deadly poison as a harmless medicine was held liable to one who was in-
jured by usinig it as a medicine, although the article had passed through several inter-
vening hands. Here the injury was a natural and probable result of the druggist's
mistake. On the other hand, in Sheffer v. Railroad Co., 105 U. S. 249, where by rea-
son of a railroad collision a passenger became disordered in mind and body and some
eight months afterwards committed suicide, it was held that his own act was the
proximate cause of his death, and that the railway company was not liable.
A contrary view is taken by the author of the note to Gilson v. Delaware Canal
Co., 36 Am. St. Rep. 809, who says at p. 821 that there is nc difference in the mea-
sure of liability between wilful and negligent torts, except perhaps where one wilfully
assumes dominion over another's property.
6 In 25 Law. Rep. Ann. 87.
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548 HARVARD LAW REVIEW.
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THE DOCTRINE OF PROXIMATE CA USE. 549
72
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550 HARVARD LAWV REVIEW.
t'ables. The aeronautwas held liable for what the crowd did as
well as for damage by the balloon.' Here the latter damage was
direct, the former proximate. Diversion from the plaintiff'sbusi-
ness might have been consequentialdamage,and the loss of prizes
he expected to get by his vegetables a remote damage.2
The law as to damages may be summed up as follows: Proxi-
mate losses are of two kinds, direct and consequential. Direct
losses are always proximateand are such as proceed immediately
from wrongful conduct without the intervention of any interme-
diate cause; while consequential losses are proximate when the
natural and probable effect of the wrongful conduct is to set in
operation the intervening cause from which the loss directly
results.3
In modernlaw then we find the concept of proximatecause doing
duty in two senses. (i) In contracts and highway cases it means
a cause which is fairly the efficient and moving cause of a certain
given result, (2) in torts, and in contracts as far as questions of
damage are concerned, the defendant's act is a proximate cause of
the natural and probable results. In actions of tort the question
whether a result is the natural and probable result of a certain act
is determined by common sense, i. e. by the jury. In contracts
the question whether in a given case A or B is the proximate
cause of a loss and the cause of losses C and D or whether cause
X has intervened to produce D, such intervention itself not being
a natural and probable result of A or B, is for the court under cer-
tain fixed rules which have grown up.
There are certain other departments of modern law in which the
doctrine of proximate cause is still to be considered, but these
involve a somewhat different aspect, and I wish to carry the his-
torical sturvey of the doctrine a little further, after which I will
return to them later.
I have already mentioned the fact that the maxim is the first one
in Lord Bacon's list. The writer of a " brilliant article " 4 in the
1 Guille v. Swan, I9 Johns. 38I.
2 In the famous Squib Case (Scott v. Shepherd, 2 Wm. Bi. 892), the defendant
threw a lighted squib into a market. It fell upon the stall of A, who to save himself
threw it upon the stall of B, who also threw it away, and it struck the plaintiff and put
out his eye. The defendant was held responsible, and the injury was held a ground of
liability for the reason that the action of the intermediate agents was involuntary.
3 Hale on Damages, secs. 22-26. Whether a result is natural and probable is for the
jury. Haverly v. State Line R. Co., I35 Pa. St. 50. In contracts the question is
usually of consequential damages. Hobbs v. Railroad Co., L. R. I0 Q. B. I I I, 122;
Hammond v. Bussey, 20 Q. B. D. 79, 89.
4 48 Law Times 371.
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THE DOCTRIANE OF PROXIMATE CAUSE. 551
American Law Review 1 says that the maxim is not found in the
civil law nor in English law before Bacon's time. In the preface
to his Regulae, Bacon himself says: -
" Whereas some of these rules have a concurrencewith the civil Ro-
man law, and some others a diversity, and many times an opposition;
such grounds as are common to our law and theirs I have not affectedto
disguise into other words than the civilians use to the 'end they might
seem invented by me, and not borrowed or translated from them; no,
but I took hold of it as a matter of great authority and majesty, to see
and consider the concordance between the laws penned and as it were
dictated by the same reason."
This seems to show that Bacon himself thought our maxim did
not exist in the Roman law. But against these opinions I will put
a quiotation from Studies in the Civil Law, by W. Wirt Howe of
the New Orleans Bar.2 Mr. Howe says
"It is believed that the maxim is not to be found in the Roman law in
so many words, but the concept was there. It may have been devised
by some canonist, or Bacon may have made it himself after the fashion
of his day. When quoted it is often followed by his commentary,in
which he says: 'It were infinite for the law to consider the causes of
causes, and their impulsions one of another; therefore it contenteth
itself with the immediate cause and judges of acts by that without look-
ing to any further degree.'"
About B. C. 286 or A. U. C. 467, a period when many laws were
passed in the Roman republic for the benefit of the people,3 the
Aquilian law was passed, designed to give a remedy for wrongful
injury to the slaves of another.4 Celsus, who was a prominent com-
mentator upon the Roman law, speaks of the following case in
these words:
"If one should precipitate a slave from the top of a bridge, Celsus
decides that his act would give rise to an action under the Aquilian law,
whetlherthe slave should die from the blow he had received, or by being
immediatelysubmerged and drowned, or whether he should perish after
being tired out in his struggles with the current."6
Mr. Howe,6 after citing this case, says: -
1 4 Am. L. Rev. 20I (I870), Joseph Willard, Esq.
2 P. 20I.
3 E. g. the Hortensian laws. One of these tending to create unity was that the
Resolutions of the Tribes should be law for the whole people.
4 See Grueber Lex Aquilia (i886), 23, 199.
5 Dig. 9, 2, 2, 7, 7. Cp. Paul as to liability for a fire negligently kindled on a windy
day.
6 Op. Cit., p. 202.
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552 HARVARD LAWV REVIEW.
1 Nov. Org., Bk. II, Oph. 2. Wharton on Negligence, section 73, by comparing
with other passages in Bacon shows that " proximate cause " was regarded by him as
"efficient cause." Compare Ins. Co. v. Boon, 95 U. S. II 7, in which it is said that
"proximate cause is the efficient cause, the one which necessarily sets the others in
motion."
2 See Meta., Bk. I, ch. III; Book I, ch. II; Bk. II, ch. IV.
3 Post, Analy., Bk. I, ch. I3.
4 4 Am. L. Rev. 204.
5 Theologica Platonica, Bk. 9, ch. 4.
6 Quaestiones super novam logicam, I Ar. Post.
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THE DOCTRINE OF PROXIMATE CAUSE. 553
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554 HAR VARD LAW REVIEW.
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THE DOCTRINE OF PR OXLTIATE CAUSE. 555
and that which the law doth principally behold there the first motivewill
be principallyregarded and not the last impulsion."1
Thus suppose A fires a pistol at B and misses him, and then runs
away, B follows with a knife and stabs at A, but A hits him with
a club and kills him. Here it might appear that the killing was
done in self-defence, but the law according to Bacon looks to the
original motive as governing liability for the whole state of facts.2
You can hardly bring this case under the maxim by saying that
the natural and probable result of A's trying to kill B is that he
will kill him in self-defence.
It is true, however, that even in the strictest sense the matter of
proximate cause may be involved in a criminal matter. Thus an
indictment sometimes fails upon the ground of remoteness.3 For
example, the trustees of a public road were indicted for causing the
death of a traveller upon the way caused by their failure to repair
the road. The court, however, held that the indictment was bad
because the neglect must be their personal neglect and death must
be the immediate result of that neglect.4 Campbell, C. J., ob-
served that on the theory of the prosecution if a town failed to
repair a road, and a traveller thereon was killed, all the inhabitants
of the town would be guilty of manslaughter. On the other hand,
the contributory negligence of the deceased is no defence to the
indictment if in fact the neglig-ence of the prisoner was a proxi-
mate cause of the death.5
Considering the criminal law as we find it above, it appears that
one must be a proximate cause of an inj'ury to be liable for it; but
if a certain intention has prevailed through a series of acts, that
binds them together in such a way that the whole makes the doer
proximate to the final result. The parts are looked at (spectantur)
as one act from motives of public policy.
If we con-sider other systems of law in other countries we find
that one is often held liable for acts of which one, physically speak-
ing, has not been a proximate cause or indeed a cause at all, except
as an unfortunate part of the causal nexus of the world at the time
the event happened. This shows still more clearly how the pur-
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556 HARVARD LAW REVIEW.
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THE DOC TRZNE OF PROXIMATE CAUSE. 557
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5 58 HARVARD LAWV REVIEW.
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THE DOCTRINE OF PROXIMA TE CA USE. 559
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560 Hl1R VARRDLAW REVIEW.
cause of the fruit is the tree, the soil, etc., and the cause of the
lambs and calves is their parents. On the other hand, if we con-
sider the " natural and probable result " doctrine as we have seen
it in torts, there is a difference between torts and property. In
torts certain things happen in the time process, the runaway horse
knocks down the traveller, the poison carelessly sold is taken by
the sick person. In property something likewise happens in the
time process, viz. the increase of the property; but in contempla-
tion of law nothing happens to the right of ownership, which is the
" effect" whose cause we are considering. Whatever rights to
the increase of the flock exist at all in B exist at the time the flock
is handed over by A. It is true there is nothing in existence then
to which the rights may attach, but there is but one act of trans-
fer of ownership. It may be argued that a tort case is strictly
parallel, for the man who was knocked down by the horse might
not have been in the street at all when the horse started to run,
but in his house or other place of safety, yet the law regards the
whole transaction as proximate effect. But the idea of necessity
is involved in the tort case, while in the property cases the whole
domninium which is transferred has for its leading idea freedom
from the will or act of the donor in every possible sense. The fig-
tree may be cut down or left; the cattle may be bred or turned
into beef and mutton, and in either case the intervening will of
the donee of the property is supreme.
Let us now turn our attention to some other departments of
life and see what analogies can be found there to our doctrine.
The most natural field in which to look for a doctrine intended to
be ethical is that of religious and moral law. What is the proxi-
mate cause of a virtuous action or of a sin ?
Let us first take up the moral law in the region where it has been
most largely reduced to a crystallized system, viz. in the juristical
works and decisions of the Roman Catholic church. It is interest-
ing to note that the system of questions to and decisions by the
higher tribunals of that church gives rise to results not unlike
those of the English common law with its accumulations of decided
cases. For, unlike the civil tribunals in the countries using the
Roman Law, these decisions are accompanied by a short statement
of the reason for them, and are published in full for the guidance
of priests and others having occasion to consult them. I shall
refer only to the well-known work of Gury on Moral Theology.'
1 Compendium Theologiae Moralis, by Joanne Petro Gury, S. J., Professor in the
Roman College, 4th ed., Rome, I852.
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THE DOCTRIeNE OF PROXIMA TE CAUSE. 56i
The principal difference between human law and the law of the
church is I that the former can command what it will by virtue of
its own nature, and can impose penalties, for the authorities have
been ordained of God with the power of laying down rules; 2 while
the ecclesiastical law can render liable only for guilt. To apply
this to an injury by one man to another: that it may be a case
where "restitution," i. e. compensation, is morally necessary, the
act complained of must be (a) Injusta, i. e. some right must be
violated, (b) Causa damni efficax, i. e. it must be one resulting in
injury, and one which can be imputed to the doer, (c) Tizeologice
culpabilis, for there can be no obligation to make reparation in
the forum of conscience unless an injury has- been committed in
the same forum. Thus idiots and somnambulists cannot be
morally liable for their acts. Moreover, there can be no injury
inflicted in a moral sense where there is no intention to injure;
" ad inj/uriam enim requiritur inztentio nocendi saltemninzdirecta,sec
praevisio damni inj,isti, sal/em iv confuso." 3
It thus appears that the doer must not only be the proximate
cause of an injury, but must have an intention to inflict a wrong.
But, as the last quotation would indicate, this intention need not
always be direct. Thus "voluntarium i;zdirectum illud est quod
non intenditur in se, sed in alio directa volito, hoc est quod in
causa vel in effectu habetur." 4 There are various kinds of " volin-
tarium indirectum," e. g. " Proxima vel remota prout valde prob-
abilemnconnexionem hkabetcum effectu in mente agentis velparurn
probabilem." Thus often blasphemiae irnpudicitiae, rixae aut in-
jzstitiae are voluntary which are done in a state of intoxication
because they can often be foreseen by the drinker, and in fact may
be sufficiently foreseen from the habit of doing such things in this
condition. Thus they are sinful. But the leader of an army who
burns a field or a fortress is not liable though innocent third per-
sons suffer, for this is only per accidens. Nor a priest who igno-
rantly gives the sacrament to a sinner, nor one who having no
other place to get money borrows from a usurer at an exorbitant
rate of interest, for that is the sin of the usurer.5
In general a triple condition must obtain for one to be morally
wrong :6_
(i) The doer shall have foreseen the evil result at least in con-
fuso; for an effect in no wise foreseen cannot be voluntary.
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562 HARVARD LAW REVIEW.
(2) That it was possible for him not to do it, for otherwise the
will would be lacking.
(3) That he is not to be held liable merely by reason of a bad
result where he is in the exercise of his rights, and the result is
therefore excusable. Conversely one may be a well-doer, although
from his action an evil effect may follow, if the following condi-
tions are present :I (i) if the purpose of the doer is good; (2) if
the causa is in itself good or indifferent; (3) if the good effect
follows as immediately from the cause as the evil effect; (4) if
the good effect at least offsets the evil effect.
We see from these extracts that the doctrine of proximate cause
in the law of the church is very similar to that of the law of the
state, the principal difference being that in the former more em-
phasis is laid upon actual intent and less use is made of a ficti-
tious and imputed intent. This has been expressed by another
religious writer as follows: " A whole act includes its motive. An
act of yours is not simply the thing you do. It is also the reason
why you do it." 2 To be morally wrong an action must be (i)
unjust, (2) harmful, (3) proceeding from an evil intent. Thus
sleeping persons are not liable for their actions because there is
no intention to do wrong.3
But, as we have seen above, the fact that a given result can be
reasonably foreseen is enough to create liability in the moral
sphere, although the result was not directly intended. This is
brought out further in the chapter in Gury's book, "De Radicibuts
Restitutionis," or " Elements of (moral) Damages." He says: -
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THE DOCTRINE OF PROXIJfA4 TE CA USE. 563
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564 HARVARD LAW REVIEWX.
1 The doctrine is followed only in Ala., Ga., Ill., Kas., Neb., and Tenn., usually
with the addition of degrees of negligence. It has been disapproved in Pa., N. Y.,
Mass., Ia., Wis, Md., N. J., Tex., Mo. For cases see Buswell on Personal Injuries
(i89q), ? 102.
2 Act Mar. 3, 189I, sec. io. U. S. v. Warren, Cir. Ct. Mass. I895. Cp. U. S. v.
Spruth, 7I Fed. Rep. 678.
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THE DOCTRINE CF PROXIMAT E CA USE. 565
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566 HARVARD LAW REV/EW.
1 Adapted from language of note to Giison v. Delaware, etc., Canal Co., 36 Am.
St. Rep. 807.
2 2 G. H. Lewes, Problems of Life and Mind, iv., sec. I9.
3 J. H. Newman, Grammar of Assent, 65.
i So in the case of a scarecrow. Grote, Phaedo, ii.
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THE DOCTRINE OF PROXIMATE CAUSE. 567
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Some Observations on the Doctrine of Proximate Cause
Author(s): Prescott F. Hall
Source: Harvard Law Review, Vol. 15, No. 7 (Mar., 1902), pp. 541-567
Published by: Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1322929
Accessed: 22-01-2016 18:15 UTC
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