Babylonian Talmud: Tractate Baba Kamma

Folio 32a

BUT IF THE CARRIER OF THE BEAM [SUDDENLY] STOPPED, HE IS LIABLE.¹  IF, HOWEVER, HE CRIED TO THE CARRIER OF THE BARREL, HALT!' HE IS EXEMPT. WHERE, HOWEVER, THE CARRIER OF THE BARREL WAS IN FRONT, AND THE CARRIER OF THE BEAM BEHIND AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS LIABLE.²  IF, HOWEVER, THE CARRIER OF THE BARREL [SUDDENLY] STOPPED, HE IS EXEMPT. BUT WHERE HE CRIED TO THE CARRIER OF THE BEAM, 'HALT!' HE IS LIABLE. THE SAME APPLIES TO ONE CARRYING A [BURNING] CANDLE WHILE ANOTHER WAS PROCEEDING WITH FLAX.

GEMARA. Rabbah b. Nathan questioned R. Huna: If a man injures his wife through conjugal intercourse, what is [the legal position]? Since he performed this act with full permission is he to be exempt [for damage resulting therefrom], or should perhaps greater care have been taken by him? — He said to him. We have learnt it: … FOR THE ONE IS ENTITLED TO WALK [THERE AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS].³  Raba [however] said: There is an a fortiori [to the contrary]: If in the case of the Wood,⁴  where this one [the defendant] was entering [as if] into his own domain, and the other [the plaintiff] was [similarly] entering [as if] into his own domain, it is nevertheless considered [in the eye of the law]⁴  that he entered his fellow's [the plaintiff's] domain, and he is made liable, should this case⁵  where this one [the defendant]⁶  was actually entering the domain of his fellow [the plaintiff]⁷  not be all the more [subject to the same law]?⁸  But surely [the Mishnah] states, … FOR THE ONE IS ENTITLED TO WALK THERE [AND CARRY BEAMS] AND THE OTHER IS ENTITLED TO WALK [THERE AND CARRY BARRELS, indicating exemption where the entry was sanctioned]! — There, both of the parties were simultaneously [active against each other], whereas here⁹  it was only he¹⁰  that committed the deed. Is she¹¹  [considered] not [to have participated in the act at all]? Is it not written, The souls that commit them shall be cut off from among their people?¹²  — [It is true that] enjoyment is derived by both of them, but it is only he to whom the active part can be ascribed.

WHERE THE CARRIER OF THE BEAM WAS IN FRONT etc. Resh Lakish stated:¹³  In the case of two cows on public ground, one lying down [maliciously] and the other walking about, if the one that was walking kicked the one that was lying, there is exemption [since the latter too misconducted itself by laying itself down on public ground], whereas if the one that was lying kicked the one that was walking, there is liability to pay. May not [the following be cited in] support of this:¹⁴  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, HE IS EXEMPT. BUT IF THE CARRIER OF THE BEAM [SUDDENLY] STOPPED HE IS LIABLE. For surely [this latter case] here is similar to that of the lying cow kicking the walking cow,¹⁵  and liability is stated! — But do you really think that this [liability] need be proved?¹⁴  [The Mishnaic text however] not only fails to be of any support [in this respect], but affords a contradiction to Resh Lakish, [in whose view] the reason [even for the liability] is that the lying cow kicked the walking cow, thus [implying] that [the latter] sustained damage [because of the former cow] through sheer accident, and there would be exemption. Now, [the case of] the Mishnah surely deals with accidental damage, and still states liability? — The Mishnah [deals with a case] where the beam blocked the [whole] passage as if by a carcass,¹⁶  whereas here [in the case dealt with by Resh Lakish] the cow was lying on one side of the road so that the other cow should have passed on the other side.¹⁷

But the concluding clause may [be taken to] support Resh Lakish. For it is stated, BUT IF THE CARRIER OF THE BARREL WAS IN FRONT AND THE CARRIER OF THE BEAM BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS LIABLE. IF, HOWEVER, THE CARRIER OF THE BARREL [SUDDENLY] STOPPED, HE IS EXEMPT. Now, surely this case resembles that of the walking cow kicking the lying cow,¹⁸  and the text states exemption? — No! The Mishnah [deals with the case where the damage was done in a usual manner as] he¹⁹  was passing in the ordinary way, whereas here [in the case dealt with by Resh Lakish] it may be argued for the lying cow,²⁰  'Even if you are entitled to tread upon me, you have still no right to kick me.'²¹

MISHNAH. IF TWO [PERSONS] WERE PASSING ONE ANOTHER ON PUBLIC GROUND, ONE [OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING, AND THEY WERE INJURED BY EACH OTHER, BOTH OF THEM ARE EXEMPT.²²

GEMARA. Our Mishnah is not in accordance with Issi b. Judah. For it has been taught: Issi b. Judah maintains that the man who had been running is liable, since his conduct was unusual. Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible.

R. Johanan stated that the halachah is in accordance with Issi b. Judah. But did R. Johanan [really] maintain this? Has R. Johanan not laid down the rule that the halachah is in accordance with [the ruling of] an anonymous Mishnah?²³  Now, did we not learn … ONE [ OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING … BOTH OF THEM ARE EXEMPT? — Our Mishnah [deals with a case] of a Sabbath eve before sunset. What proof have you of that? — From the text, OR BOTH OF THEM RUNNING … BOTH OF THEM ARE EXEMPT; [for indeed] what need was there for this to be inserted? If in the case where one was running and the other walking there is exemption, could there be any doubt²⁴  where both of them were running?²⁵  It must accordingly mean thus: 'Where one was running and the other walking there is exemption; provided, however, it was on a Sabbath eve before sunset. For if on a weekday, [in the case of] one running and the other walking there would be liability, [whereas where] both of them were running even though on a weekday they would be exempt.'

The Master stated: 'Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible.' On Sabbath eve, why is it permissible? — As [shown by] R. Hanina: for R. Hanina used to say:²⁶

1. For he is to blame.
2. For the carrier of the beam, who was in this case second, should have taken care to keep at a reasonable distance.
3. This proves that where the act is sanctioned no liability is involved.
4. Referring to Deut. XIX, 5: As when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree and the head slippeth from the helve and lighteth upon his neighbour… cf. also infra p. 175
5. I.e., the problem in hand.
6. The husband.
7. The wife.
8. Of liability.
9. V. p. 170 n. 6.
10. I.e., the husband.
11. I.e., the wife.
12. Lev. XVIII, 29. [The plural indicates that both are regarded as having participated in the act.]
13. Supra pp. 98 and 124.
14. I.e., that misconduct involves liability for damage that may result.
15. As here, too, the offender is to blame for misconduct.
16. Consequently the liability extends even to accidental damage.
17. [There could therefore be no liability attached except where the lying cow maliciously kicked her, but not for accidental damage.]
18. In that there was contributory misconduct on the part of the plaintiff and his cow respectively.
19. The carrier of the beam.
20. Lit., 'she can say to her'.
21. It was therefore requisite that Resh Lakish should express his rejection of this plausible argument.
22. So long as they had no intention of injuring each other.
23. Cf. supra p. 158.
24. That there should be exemption.
25. Where there was contributory negligence.
26. Cf. Shab. 119a.

'Come, let us go forth to meet the bride, the queen!' Some [explicitly] read:'… to meet Sabbath, the bride, the queen.' R. Jannai, [however,] while dressed in his Sabbath attire used to remain standing and say: 'Come thou, O queen, come thou, O queen!'

MISHNAH. IF A MAN SPLITS WOOD ON PRIVATE PREMISES¹  AND DOES DAMAGE ON PUBLIC GROUND, OR ON PUBLIC GROUND AND DOES DAMAGE ON PRIVATE PREMISES,²  OR ON PRIVATE PREMISES³  AND DOES DAMAGE ON ANOTHER'S PRIVATE PREMISES, HE IS LIABLE.

GEMARA. And [all the cases enumerated] are necessary [as serving respective purposes]. For if the Mishnah had stated only the case of splitting wood on private premises and doing damage on public ground, [the ruling could have been ascribed to the fact] that the damage occurred at a place where many people were to be found, whereas in the case of splitting wood on public ground and doing damage on private premises, since the damage occurred in a place where many people were not to be found, the opposite ruling might have been suggested.⁴  Again, if the Mishnah had dealt only with the case of splitting wood on public ground and doing damage on private premises,⁵  [the ruling could have been explained] on the ground that the act⁶  was even at the very outset unlawful, whereas in the case of splitting wood on private premises³  and doing damage on public ground, [in view of the fact] that the act⁶  [as such] was quite lawful, the opposite view might have been suggested.⁴  Again, if the Mishnah had dealt only with these two cases [the ruling could have been explained in] the one case on account of the damage having occurred at a place where many people were to be found, and [in] the other on account of the unlawfulness of the act,⁶  whereas in the case of splitting wood on private premises³  and doing damage on another's private premises, since the damage occurred in a place where many people were not to be found and the act⁶  was quite lawful even at the very outset, the opposite view might have been suggested.⁴  It was [hence] essential [to state explicitly all these cases].

Our Rabbis taught: 'If a man entered the workshop of a joiner without permission and a chip of wood flew off and struck him in the face and killed him, he [the joiner] is exempt.⁷  But if he entered with [the] permission [of the joiner], he is liable.' Liable for what? — R. Jose b. Hanina said: He is liable for the four [additional] items,⁸  whereas regarding the law of refuge⁹  he is [still] exempt on account of the fact that the [circumstances of this] case do not [exactly] resemble those of the Wood.¹⁰  For in the case of the Wood the one [the plaintiff] was entering [as if] into his own domain and the other [the defendant] was [similarly] entering [as if] into his own domain, whereas in this case the one [the plaintiff] had [definitely] been entering into his fellow's [the defendant's] workshop. Raba [however,] said: There is an a fortiori [to the contrary]: If in the case of the Wood where the one [the plaintiff] was entering to his own [exclusive] knowledge and that one [the defendant] was similarly entering of his own accord, it is nevertheless considered [in the eye of the law]¹⁰  as if he had entered with the consent of his fellow [the defendant] who thus becomes liable to take refuge, should the case before us, where the one [the plaintiff] entered the workshop with the knowledge of his fellow [the joiner], be not all the more subject to the same liability? Raba therefore said: What is meant by being exempt from [being subject to the law of] refuge is that the sin could not be expiated by mere refuge; the real reason of the statement of R. Jose b. Hanina being this: that his offence,¹¹  though committed inadvertently, approaches wilful carelessness.¹²  Raba [on his own part] raised [however] an objection: If an officer of the Court inflicted on him¹³  an additional [unauthorized] stroke, from which he died, he [the officer] is liable to take refuge on his account.¹⁴  Now, does not [the offence] here committed inadvertently approach wilful carelessness?¹²  For surely he had to bear in mind that a person might sometimes die just through one [additional] stroke. Why then state, 'he is liable to take refuge on his account'? — R. Shimi of Nehardea there upon said: [The officer committed the offence as he] made a mistake in [counting] the number [of strokes]. [But] Naba tapped R. Shimi's shoe¹⁵  and said to him: Is it he who is responsible for the counting [of the strokes]? Was it not taught: The senior judge recites [the prescribed verses],¹⁶  the second [to him] conducts the counting [of the strokes], and the third directs each stroke to be administered?¹⁷  — No, said R. Shimi of Nehardea; it was the judge himself who made the mistake in counting.

A [further] objection was raised: If a man throws a stone into a public thoroughfare and kills [thereby a human being], he is liable to take refuge.¹⁸  Now, does not [the offence] here committed inadvertently approach wilful carelessness?¹⁹  For surely he had to bear in mind that on a public thoroughfare many people were to be found, yet it states, 'he is liable to take refuge'? — R. Samuel b. Isaac said: The offender [threw the stone while he] was pulling down his wall.²⁰  But should he not have kept his eyes open? — He was pulling it down at night. But even at night time, should he not have kept his eyes open? — He was [in fact] pulling his wall down in the day time, [but was throwing it] towards a dunghill. [But] how are we to picture this dunghill? If many people were to be found there, is it not a case of wilful carelessness?¹⁹  If [on the other hand] many were not to be found there, is it not sheer accident?²¹  — R. Papa [thereupon] said: It could [indeed] have no application unless in the case of a dunghill where it was customary for people to resort at night time, but not customary to resort during the day, though it occasionally occurred that some might come to sit there [even in the day time]. [It is therefore] not a case of wilful carelessness since it was not customary for people to resort there during the day. Nor is it sheer accident since it occasionally occurred that some people did come to sit there [even in the day time].

R. Papa in the name of Raba referred [the remark of R. Jose b. Hanina] to the commencing clause: 'If a man entered the workshop of a joiner without permission and a chip of wood flew off and struck him in the face and killed him, he is exempt.' And R. Jose b. Hanina [thereupon] remarked; He would be liable for the four [additional] items,²²  though he is exempt from [having to take] refuge.²³  He who refers this remark to the concluding clause²⁴  will, with more reason, refer it to the commencing clause,²⁵  whereas he who refers it to the commencing clause²⁵  maintains that, in the [case dealt with] in the concluding clause where the entrance had been made with [the] permission [of the joiner], he would be liable to take refuge.²³  But would he be liable to take refuge [in that case]?²⁴  Was it not taught: If a man enters the workshop of a smith and sparks fly off and strike him in the face causing his death, he [the smith] is exempt²⁶  even where the entrance had been made by permission of the smith? — [In this Baraitha] here, we are dealing with an apprentice of the smith. Is an apprentice of a smith to be killed [with impunity]? — Where his master had been urging him to leave but he did not leave. But even where his master had been urging him to leave, [which he did not do,] may he be killed [with impunity]? — Where the master believed that he had already left. If so, why should not the same apply also to a stranger?

1. I.e., his own premises.
2. Of a neighbour.
3. V. p. 173, n. 5.
4. Lit., 'I might have said no'.
5. V. p. 173. n. 6.
6. Of splitting wood.
7. From fleeing to the city of refuge. Cf. Num. XXXV, 11-28, Deut. XIX, 4-6; and supra p. 137.
8. In the case of mere injury; cf. supra p. 133.
9. Laid down in the case of manslaughter.
10. Referred to in the verse, As when a man goes into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve and lighteth upon his neighbour, that he die, he shall flee unto one of those cities, and live; Deut. XIX, 5. Cf. also supra p. 170.
11. I.e., that of the joiner.
12. In which case the taking of refuge is insufficient; cf. e.g. Num. XXXV, 16-21, and Deut. XIX, 11-13.
13. On an offender sentenced to lashes.
14. The victim's. Mak. III, 14.
15. To draw his attention.
16. Deut. XXVIII, 58 etc.; Ps LXXVIII, 38.
17. Lit., says, "Smite him". Mak. 23a.
18. Ibid. II. 2.
19. In which case the taking of refuge is insufficient; cf. e.g. Num XXXV, 16-21 and Deut. XIX, 11-13.
20. Cf. Mak. 8a.
21. Why then be subject to the law of refuge?
22. In the case of mere injury; cf. supra p. 133.
23. In the case of manslaughter.
24. Where the entrance had been made with the knowledge of the joiner.
25. Where the entrance had been made without any imitation.
26. From having to take refuge.