Babylonian Talmud: Tractate Baba Kamma

Folio 31a

the refuse of boiled dates [that had been placed on public ground] ownerless? We can well understand this in the case of R. Adda b. Ahabah who acted in accordance with his own dictum, but in the case of R. Huna, are we to say that he changed his view? — These owners [in that case] had been warned [several times not to repeat the nuisance].¹

MISHNAH. IF TWO POTTERS WERE FOLLOWING ONE ANOTHER AND THE FIRST STUMBLED AND FELL DOWN AND THE SECOND STUMBLED BECAUSE OF THE FIRST, THE FIRST IS LIABLE FOR THE DAMAGE DONE TO THE SECOND.

GEMARA. R. Johanan said: Do not think [that the Tanna of] this Mishnah is R. Meir who considers stumbling as implying carelessness that involves liability.²  For even according to the Rabbis who maintain [that stumbling is] mere accident for which there is exemption,²  there should be liability here where he³  had [meanwhile had every possibility] to rise and nevertheless did not rise. [But] R. Nahman b. Isaac said: You may even say that [the Mishnah speaks also of a case] where he³  did not yet have [any opportunity] to rise, for he³  was [surely able] to caution⁴  and nevertheless did not caution. R. Johanan, however, considers that where he³  did not yet have [any opportunity] to rise, he³  could hardly be expected to caution as he was [surely] somewhat distracted.

We have learnt: If the carrier of the beam was in front, the carrier of the barrel behind, and the barrel broke by [colliding with] the beam, he⁵  is exempt. But if the carrier of the beam stopped suddenly, he is liable.⁶  Now, does this not mean that he stopped for the purpose of shouldering the beam as is usual with carriers, and it yet says that he is liable, [presumably] because [he failed] to caution?⁷  — No, he suddenly stopped to rest [which is rather unusual in the course of carrying]. But what should be the law⁸  in the case where he stopped to shoulder the beam? Would there then be exemption? Why then state in the subsequent clause,⁹  'Where he, however, warned the carrier of the barrel to stop, he is exempt'? Could the distinction not be made in the statement of the same case [in the following manner]: 'Provided that he stopped to rest; but if he halted to shift the burden on his shoulder, he is exempt'? — It was, however, intended to let us know that even where he stopped to rest, if he warned the carrier of the barrel to stop, he is exempt.

Come and hear: If a number of potters or glass-carriers were walking in line and the first stumbled and fell and the second stumbled because of the first and the third because of the second, the first is liable for the damage [occasioned] to the second, and the second is liable for the damage [occasioned] to the third. Where, however, they all fell because of the first, the first is liable for the damage [sustained] by them all. If [on the other hand] they cautioned one another, there is exemption. Now, does this teaching not deal with a case where there has not yet been [any opportunity] to rise?¹⁰  — No, [on the contrary] they [have already] had [every opportunity] to rise. But what should be the law⁸  in the case where they [have not yet] had [any opportunity] to rise? Would there then be exemption? If so, why state in the concluding clause, 'If [on the other hand] they cautioned one another, there is exemption'? Could the distinction not be made in the statement of the same case [in the following manner]: 'Provided that they have already had every opportunity to rise; but if they have not yet had any opportunity to rise, there is exemption'? — This is what it intended to let us know: That even where they [have already] had [every opportunity] to rise, if they cautioned one another, there is exemption.

Raba said: The first is liable for damage [done] to the second whether directly by his person¹¹  or by means of his chattels,¹²  whereas the second is liable for damage to the third only if done by his person¹³  but not if caused by his chattels. [Now,] in any case [how could these rulings be made consistent]? [For] if stumbling implies carelessness, why should not also the second be liable [for all kinds of damage]?¹⁴  If [on the other hand] stumbling does not amount to carelessness, why should even the first not enjoy immunity?

1. It was therefore a specially aggravated offence.
2. Supra pp. 153 and 155.
3. The first potter.
4. The second potter to stop.
5. The carrier of the beam.
6. Infra p. 169.
7. Which would thus support the interpretation given by R. Nahman and contradict the view expounded by R. Johanan.
8. According to the view of R. Johanan.
9. Infra p. 170.
10. V. p. 166, n. 7.
11. Being subject to the law applicable to damage done by Man.
12. Which are subject to the law applicable to Pit.
13. V. p. 167, n. 4
14. Even if caused by his chattels.

— The first was certainly [considered] careless,¹  whilst, as to the second, he is liable for damage done by his person, [that is,] only where he [has already] had [the opportunity] to rise and did [nevertheless] not rise; for damage caused by his chattels he is [however] exempt, as he may say to him:²  It is not I who dug this pit.³

An objection was raised [from the following Baraitha]: All of them are liable for damage [done] by their person,⁴  but exempt for damage [caused] by their chattels.⁴  Does [this Baraitha] not refer even to the first?⁵  — No, with the exception of the first. But is it not stated, 'All of them…'? — R. Adda b. Ahabah said: 'All of them' refers to [all] the plaintiffs.⁶  [But] how is this? If you maintain that the first [is] also [included], we understand why the Baraitha says 'All of them'. But if you contend that the first is excepted, what [meaning could there be in] 'All of them'? Why [indeed] not say 'The plaintiffs'? — Raba [therefore] said: The first⁷  is liable for both injuries inflicted upon the person of the second and damage caused to the chattels of the second, whereas the second⁸  is liable to compensate the third only for injuries inflicted upon his person but not for damage⁹  to his chattels; the reason being that the [person of the] second is subject to the law applicable to Pit, and no case can be found where Pit would involve liability for inanimate objects.¹⁰  This accords well with the view of Samuel, who holds that all nuisances are [subject to the law applicable to] Pit.¹¹  But according to Rab who maintains that it is only where the nuisance has been abandoned that this is so, whereas if not [abandoned] it is not so,¹²  what reason could be advanced?¹³  — We must therefore accept the first version,¹⁴  and as to the objection raised by you [from the Baraitha], 'All of them are liable',¹⁵  it has already been interpreted by R. Adda b. Minyomi in the presence of Rabina to refer to a case where inanimate objects have been damaged by the chattels [of the defendant].¹⁶

The Master stated: 'Where, however, they all fell because of the first, the first is liable for the damage [sustained] by them all.' How [indeed can they all] fall [because of the first]? — R. Papa said: Where he blocked the road like a carcass, [closing the whole width of the road]. R. Zebid said: Like a blind man's staff.¹⁷

MISHNAH. IF ONE COMES WITH HIS BARREL AND AN OTHER COMES WITH HIS BEAM AND THE PITCHER¹⁸  OF THIS ONE BREAKS BY [COLLISION WITH] THE BEAM OF THIS ONE, HE¹⁹  IS EXEMPT, FOR THE ONE IS ENTITLED TO WALK [THERE AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS]. WHERE THE CARRIER OF THE BEAM WAS IN FRONT, AND THE CARRIER OF THE BARREL BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, THE CARRIER OF THE BEAM IS EXEMPT.²⁰

1. [Since stumbling implies carelessness.]
2. To the third.
3. I.e., the nuisance was created not by the second, but caused by the first who fell.
4. Whether to the person or to the chattels of the plaintiff.
5. Who, according to Raba, is liable for damage caused even by his chattels to the person of the second as being subject to the law applicable to Pit. This Baraitha thus refutes Raba.
6. The first is thus, as a matter of course, not included.
7. Being subject to the law applicable to damage done by Man.
8. Should be subject to the law applicable in Pit.
9. Though done by the person of the second.
10. Supra p. 18.
11. Supra p. 150. [The person of the second may therefore be treated as Pit.]
12. But is subject to the law applicable to Ox where damage to inanimate objects is also compensated.
13. For the person of the second, though lying on the ground, has surely never been abandoned by him. Why then exemption for damage done by him to inanimate objects?
14. Of the statement of Raba, according to which the first is liable for damage done whether by his person or by his chattels, whereas the second is liable for damage done only by his person but not if done by his chattels.
15. For damage done by their person, but exempt for damage done by their chattels, including thus also the first.
16. Which are subject to the laws of Pit involving no liability for inanimate objects. Were, however, the person of the plaintiff to have been injured, there would be no exemption even if the injury were caused by the chattels of the first, as expounded by Raba.
17. [With which the blind gropes his way on either side of the road.]
18. Cf. supra p. 142.
19. The owner of the beam.
20. For the carrier of the barrel who was behind should not have proceeded so fast.