concurring. I must concur in the result only because I cannot say from the testimony as abstracted that Babbitt did not owe a duty to Carla Ann Cobb or anyone else who stood alongside the vehicle Babbitt parked on the grass. Appellee appropriately argues the foreseeability test, saying that a very unusual sequence of events produced this injury and that Babbitt could not reasonably foresee this unusual combination, i.e.,
(a) that Danny Creed would disobey his instructions to “shut it off at the top of the hill”;
(b) that DeWayne Moore would unexpectedly project himself into the path of the Creed vehicle;
(c) that the Creed vehicle would leave the paved roadway; and
(d) that Carla Cobb, who was completely off the pavement on the grass, was in a place of danger.
When viewed in the light most favorable to the appellant, with all doubts resolved in her favor, it would be difficult to say, as a matter of law, that one in Babbitt’s position could not reasonably have foreseen all of these factors. Carla Cobb was between the paved drive and the Babbitt vehicle, which may have been no more than two feet from the edge of the pavement. It is at least debatable that it might have been foreseen that someone would have attempted to flag down the speeding young driver if it appeared that he was “coming like there wasn’t nothing in his way” and was about to run into the “gas line where it made a ‘T’”, which seems to have been in proximity to the bus stop where Babbitt’s vehicle was parked. It was a normal human reaction and not an efficient intervening cause. See Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W.2d 117; Hill v. Wilson, 216 Ark. 179, 224 S.W. 2d 797. And perhaps there might have been reason to foresee that the youth, anxious to show what the first automobile he ever owned would do, might become so exhilarated with the actual high-speed performance of this object of his pride that he would fail to heed the instruction to “shut it down before he came over the hill.” The top of the hill also seems to have been in the vicinity of the Babbitt vehicle.
I cannot join in the majority opinion for two reasons. One of them is the injection of the “but for” test through a case from a sister jurisdiction. And then while I can agree with the theory of negligence based upon § 876 of the Restatement of the Law of Torts espoused in the majority opinion, to me the real question on this appeal is the test of negligence by foreseeability, to which I believe the majority concedes this theory of negligence to be subject. However, I agree that this test in this case is not whether Babbitt, or one in his position, should have reasonably foreseen injury to others, and that it does turn upon the question whether he should have reasonably foreseen injury to Carla Ann Cobb, or one in her position.
There can be no negligence unless the actor breaches a duty on his part to protect the plaintiff, individually or as as a member of a class or group, from injury. 65 CJS 464, 475, 499, Negligence §§ 2 (1), 4 (1), 4 (10); Rice v. King, 214 Ark. 813, 218 S.W. 2d 91; Union Securities Co. v. Taylor, 185 Ark. 737, 48 S.W. 2d 1100.
Duty, however, is not limitless. 65 CJS 486 Negligence § 4 (2). It is limited to the risk reasonably to be foreseen. 65 CJS 486, 488, 520 Negligence §§ 4 (2), 4 (3), § 5 (4). In St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W. 2d 975, we quoted from St. Louis-San Francisco Ry. Co. v. Burns, 186 Ark. 921, 56 S.W. 2d 1027, a clear statement of the rule, i.e.,
. . .the care required is only to provide against such dangers as ought to be foreseen in the light of the attendant circumstances, and the ideal ‘prudent person’ will therefore not neglect what he can foresee as probable nor divert his attention to the anticipation of events barely possible, but will order his conduct by the measure of what appears likely in the ordinary course of events.
See also, Dollins v. Hartford Accident & Indemity Co., 252 Ark. 13, 477 S.W. 2d 179.
In my opinion the appropriate test, insofar as the appellant is concerned is that stated in the oft-cited case of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 ALR 1253 (1928). Even when an act constitutes a wrong as to someone else, it is not negligence as to a plaintiff in a personal injury action, if there was no reason to believe that there was any risk of bodily insecurity to the plaintiff. In the opinion in Palsgraf, Mr. Justice Cardozo said:
. . . .What the plaintiff must show is “a wrong” to herself, i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct “wrongful” because unsocial, but not “a wrong” to anyone. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act, and therefore of a wrongful one, irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.
. . . .The range of reasonable apprehension is at times a question for the Court, and at times, if varying inferences are possible, a question for the jury.
. . . .One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong.
There is a definite trend in this country toward acceptance of the Palsgraf rule. Prosser, Law of Torts, 4th Ed., 258, § 43. As a matter of fact, it is the position taken in Restatement of the Law, Torts 2d, § 281, Comment c. There is a very cogent, and perhaps unintentionally favorable, argument for the Palsgraf rule in Professor Prosser’s comments in his words found at p. 263:
... .It is still inconceivable that any defendant should be held liable to infinity for all of the consequences which flow from his act, and some boundary must be set. If nothing more than “common sense” or a “rough sense of justice” is to be relied on, the law becomes to that extent unpredictable, and at the mercy of whatever the court, or even the jury, may decide to do with it.
Although Professor Prosser feels that determination of the question of duty is always one for the court,1 it seems to me that Justice Cardozo stated the preferable rule in the quotation above. Following it, I must concede that on the record abstracted, there was at least a jury question.
Prosser, Law of Torts, 289, § 45.