The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.

[160] Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant.  But it will be seen that the same result may be caused by a choice at different points.  For instance, a man is sued for having caused his neighbor’s house to burn down.  The simplest case is, that he actually intended to burn it down.  If so, the length of the chain of physical causes intervening is of no importance, and has no bearing on the case.

But the choice may have stopped one step farther back.  The defendant may have intended to light a fire on his own land, and may not have intended to burn the house.  Then the nature of the intervening and concomitant physical causes becomes of the highest importance.  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.

Take a case like the glancing of Sir Walter Tyrrel’s arrow.  If an expert marksman contemplated that the arrow would hit a certain person, cadit qucoestio.  If he contemplated that it would glance in the direction of another person, but contemplated no more than that, in order to judge of his liability we must go to the end of his fore-sight, and, assuming the foreseen event to happen, consider what the manifest danger was then.  But if no such event was foreseen, the marksman must be judged by the circumstances known to him at the time of shooting.