A choice which entails a concealed
consequence is as to that consequence no choice.
The general principle of our law is that loss from accident must
lie where it falls, and this principle is not affected by the
fact that a human being is the instrument of misfortune. But
relatively to a given human being anything is accident which he
could not fairly have been expected to contemplate as possible,
and therefore to avoid. In the language of the late Chief Justice
Nelson of New York: "No case or principle can be found, or if
found can be maintained, subjecting an individual to liability
for [95] an act done without fault on his part .... All the cases
concede that an injury arising from inevitable accident, or,
which in law or reason is the same thing, from an act that
ordinary human care and foresight are unable to guard against, is
but the misfortune of the sufferer, and lays no foundation for
legal responsibility." /1/ If this were not so, any act would be
sufficient, however remote, which set in motion or opened the
door for a series of physical sequences ending in damage; such as
riding the horse, in the case of the runaway, or even coming to a
place where one is seized with a fit and strikes the plaintiff in
an unconscious spasm.
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