PROXIMATE CAUSE AND PROBABLE CONSEQUENCE. 123 



suit] can be [maintained] or not depends upon the degree of 

 probability there was that such accident might happen from 

 thus leaving exposed the partially dug well, considered, per- 

 haps, in connection with the usefulness of the act or thing 

 causing the danger. ... If the probability was so strong as 

 to make it the duty of the owner of the lot, as a member of the 

 community, to guard that community from the danger to 

 which the pit exposed its members in person and property, 

 he is liable to an action for loss occurring through his neglect 

 to perform that duty. We think any reasonable man of or- 

 dinary understanding and extent of observation of the ways 

 of life would say that the probability of injury to others, 

 under the circumstances, from leaving the well in question in 

 the condition it was in, was not only strong but that it 

 amounted almost to certainty — a probability as strong as 

 would arise from an unguarded cellar or a street in the 

 city." 21 



On the other hand, cutting a tree till it was nearly ready 

 to fall and then setting it on fire was held not to make the de- 

 fendant liable for its falling on the plaintiff's mare and colt 

 running at large, as they had a right to do, on the defendant's 

 uninclosed land. "When the act is lawful, the liability of the 

 actor for an injury occasioned by it depends in the first place 

 on the question whether the injury is the natural or probable 

 consequence of the act, or is merely accidental." ^^ 



And where the plaintiff's hogs, lawfully running at large, 

 were accustomed to sleep in the defendant's barn and, while 

 they were there, the floor broke down, the defendant having 

 overloaded it, and the hogs were killed, the defendant was 

 held not liable. "It devolves on the plaintiff to show that 

 there was such connection between the negligent act and the 

 injury as to bring it within reasonable contemplation of the 

 actor that such injury would naturally and probably result 



^ Young V. Harvey, i6 Ind. 314. 



'' Durham v. Musselman, 2 Blackf. (Ind.) 96. 



