The question will be the degree of danger
attending the contemplated (and therefore chosen) effect of the
defendant's conduct under the circumstances known to him. If this
was very plain and very great, as, for instance, if his conduct
consisted in lighting stubble near a haystack close to the house,
and if the manifest circumstances were that the house was of
wood, the stubble very dry, and the wind in a dangerous quarter,
the court would probably rule that he was liable. If the
defendant lighted an ordinary fire in a fireplace in an adjoining
house, having no knowledge that the fireplace was unsafely
constructed, the court would probably rule that he was not
liable. Midway, complicated and doubtful cases would go to the
jury.
But the defendant may not even have intended to set the fire, and
his conduct and intent may have been simply to fire a gun, or,
remoter still, to walk across a room, in doing which he
involuntarily upset a bottle of acid. So that cases may go to the
jury by reason of the remoteness [161] of the choice in the
series of events, as well as because of the complexity of the
circumstances attending the act or conduct. The difference is,
perhaps, rather dramatic than substantial.
But 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, and what
consequences he has actually contemplated as flowing from them,
and then goes on to determine what dangers attended either the
conduct under the known circumstances, or its contemplated
consequence under the contemplated circumstances.
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