Powell, J.

The petition alleges substantially the following state of facts: The plaintiff was driving an automobile on one of the streets of Savannah, and came to a place where the railroad company’s tracks cross the street on an embankment several feet higher than the usual street level, so that the approaches to the crossing are on an ihcline. At this point the company’ maintains crossing bars, controlled from a signal-tower located near the crossing. When a train approaches the crossing the bars are lowered, thus excluding travelers from the tracks. When the bars are up, this is a signal to the public that they may cross without danger from the trains. The tracks approach the crossing on a curve, and persons traveling upon the street can not tell when a train is coming, otherwise than through observing the condition of the crossing bars. The man in the tower who controlled the bars had a view of the tracks, of the crossing, and of persons approaching the crossing from either direction. The plaintiff, as he approached the crossing, *777saw that the bars were up, indicating that the way was clear. As the approach was considerably up grade, he threw the levers, which control the spark and the mixture of gasoline vapor admitted into the engine, into such a position as to give the machine its maximum of eighteen horse-power. As he came upon the tracks the towerman suddenly lowered the bars on both sides of the crossing, thus penning him in upon the tracks. He threw his brakes on in full emergency and stopped the machine (the gasoline engine, as well as.the automobile itself), but did not change the spark and gas levers. There were three tracks. He stopped on the first. The towerman cried out to him to move the machine, that a train was coming. He released the brakes, and, getting behind the machine, with an abnormal degree of strength caused by the excitement of the emergency, pushed the machine from the first track to the second track. The towerman cried to him again, telling him to move the machine, that the train was coming on the middle track. He gave it another shove, and just as he got it on to the third track the engine and cars dashed by on the middle track. The. bars were then raised so that the plaintiff could proceed; but, according to the allegations of the petition, he was so unnerved and robbed of his ordinary senses by the fright which the situation had produced that he forgot the condition in which he had left his levers, and attempted to start the machine with the maximum power turned on. The result was that when- he turned the crank, the engine “kicked back,” threw him against the radiator of the machine, broke out several of his teeth, and inflicted other severe injuries upon his mouth and face. The operation of the automobile, and the mechanics, so to speak, of the situation, are set out in full. We do not know enough of the make-up and working of an automobile to give a brief description of all these things, but we hardly think it is necessary.

The defendant filed a general demurrer to the petition, insisting that under the allegations, the defendant’s negligence can not be considered as the proximate cause of the plaintiff’s injury; that the injury was not a natural or a reasonably to be anticipated effect of the defendant’s act; that the plaintiff’s injuries were the result of his own act in cranking the machine without exercising usual and ordinary precaution. The trial court overruled the demurrer, and the defendant brings error.

*778The state of facts presented in this case is unusual, and we have given it considerable study. The briefs of counsel for both sides are replete with citations of authorities. We have read .and reread a multitude of eases on the subject of what relation must exist between a negligent act and an injury that follows, in order that the author of the one may be held liable in damages to the sufferer of the other. We have read of “proximate cause” and of- “natural consequence,” and of other phrases expressing the same general idea, until eyes have grown weak with reading and brain fagged out with trying to understand what learned judge after learned judge and learned law-writer after learned law-writer have said on the subject; and yet we realize that we have not pursued the subject further than to examine only a small percentage of the cases and of the text-books that we might have read. But the thought comes to us, that one may live in sight of the ocean for a lifetime, may sail upon it, may know its moods in the calm and in the storm, and yet not be able to answer some simple question as to a cup of cold water. He who so oft had studied with most critical and intelligent eyes the profusion of flowers in which England’s gardens and fields abound confessed how little he knew of the “all in all” of the single and insignificant flower which he plucked from the crannied wall. Thus much we have said by way of explaining why in this opinion there is absence of citation of eases on a subject as to which cases so abound.

Cause and effect find their beginning and end in the limitless and unknowable. Therefore, courts, in their finitude, do not attempt to deal with- cause and effect in any absolute degree, but only in such a limited way as is practical and as is within the scope of ordinary human understanding. Hence, arbitrary limits have been set; and such qualifying words as “proximate” and “natural” have come into use as setting the limits beyond which the courts will not look, in the attempt to trace the connection between a giv.en cause and a given effect. A plaintiff comes into court alleging, as an effect, some injury that has been done to his person or to his property. He shows that antecedent to the injury a wrongful act of another person occurred, and that if this wrongful act had not occurred, the injury complained of would not (as human probabilities go) have occurred. We then say, in common speech, that the wrong wás a cause of the injury. But to make such a standard (that if the cause *779had not existed, the effect would not have occurred) the basis of legal responsibility would soon prove very unsatisfactory; for a reductio ad absurduni may be promptly established by calling to mind that if the injured person had never been born, the injury would not have happened. So the courts ask another question: Was the wrongful act the proximate cause?

All the past is a part of,the cause of every present effect. The courts-can deal with that great body of cause only as it relates to human activity; and a particular court dealing with a particular case must as a practical necessity isolate the activities near by to the effect in question, and from these must make the juridic determination of responsibility. Now, as activities are viewed by the courts in administering the law, they divide themselves into two classes— proper or non-negligent activities and wrongful or negligent activities. (The word “activity” is here used in a sense broad-enough to include both omission and commission.) The normal course of things which the law seeks to establish, and for a violation of which the law professes to give redress, 'is for all men to regulate their activities properly, — that is to say, non-negligently; and whether a man has so regulated his activities is usually determined by comparing what he did under the circumstances with what an ordinary-man of common prudence would have done under the .same circumstances. ' If hurt conies to a person, and by looking back through the near-by causes which concentrated and became effectual in the hurtful thing, it appears that all those whose activities were-concerned acted lawfully and as ordinarily prudent men -would have acted, we say that the person so hurt has suffered an accident, and no legal.responsibility can be asserted against any .one; But if, in examining the causes which joined in producing the.effect,.we find that one or more of them consisted in somebody’s having .violated the standard and having done something which -an -ordinarily prudent man would not have done, the first step toward the declaration of legal responsibility is established. We then say that the injury was the result of negligence' (or sometimes of wilful tort, which, for the sake of brevity, we are here classing under the general term “negligence”). . .

Though negligence is discovered in relation to one of the causes which have preceded the injurious effect, it does not -follow that the author of the negligence is to be held legally responsible for the *780injury. In the first place, to judge the transaction according tó the natural probabilities which men’s minds take as the basis for passing judgment upon the course of human affairs, it'may appear that causes other than the negligent one referred to so preponderated in bringing about the result as to lead us to say, from a human point of view, that the injury was just as likely to have ensued (with only its details somewhat varied, perhaps) if the negligent thing had not occurred. In such cases we exempt the author of the negligence from liability.

Again, it may appear that the negligent act in question was not the only one of the near causes which was negligent. In case two or more near and preponderating negligent causes are found to have become effectuated in the same injurious result, the question as to which of the two or more negligent actors is to be held responsible is determined usually in this wise: If the two negligent acts are so related that the first would not probably have resulted in injury if the other had not occurred, and the latter amounts to such a preponderating cause that it probably would have produced the injury even if the first negligence had not occurred, or if the author of the latter negligence, with the intermediate effects of the former negligence consciously before him, is guilty of a new negligent act which preponderates in producing the injurious effect, we say that the first negligent cause is not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connection so far as juridic purposes are concerned. But if two negligent causes stand so related that neither would have produced a harmful result hut for the other, and both of them consist of such acts as, according to the general course of human probabilities, produce some such injurious effect as that which did in fact ensue, — i. e., if both the negligent causes are material factors in producing the injury, and are closely connected with it, and one has not so intervened as to make it the preponderating cause, wo say that the two negligent actors are guilty of concurring negligence; or if one of the two negligent actors is himself the complaining party, we speak of his conduct as contributory negligence. Hence, the proximate cause of an injury may not, even in juridic contemplation, be sole or single.

Now if it appears that the injury resulted from a condition into which there entered both negligent and non-negligent activities, and that according to the laws of human probability the injury *781would not have resulted but for the negligent activities, and that when the negligent and non-negligent activities united, the injury naturally followed, the law disregards the non-negligent activities as causes, considers them as but a part of the normal environment, and considers the negligent actor as disturbing that normality, and, therefore, as being the juridic cause of the injury. The law looks-upon the ordinary current of prudently and lawfully conducted human activity as an ever moving stream of energy which may do hurt to those who come within its way, but which can never cause legal injury. Disturb it with negligence, and it flows on; and if the disturbance produced by the negligence causes it to flow in such a way as that it does a hurt which it otherwise would not have done, the negligence, and not the normal stream, is, in legal contemplation, the cause of the injury.

Now, call one other thing to mind, and we will proceed to apply the principles we are discussing to the facts of the case. In every case where a personal injury is complained of, the activities of the injured person are, of necessity, a part of the general conditions attendant upon the particular effect asserted. If his conduct at the time of the injury and precedent thereto has conformed to the normal standard of prudence, his activities are considered asTnerely a part of the ordinary flow of human activity. If he has been guilty of negligence, then, in determining the proximate cause of the injury, his negligence counts just as if it were anybody else’s. It may itself be the proximate cause. It may so intervene between prior negligence of some other person and the injurious effect as to break the line of causal connection.- It may concur -with the negligence of another person.

In this case the injurious effect was the personal harm done to the plaintiff by the gasoline engine of an automobile kicking back ■when the plaintiff attempted to crank it. The activities of inanimate things are of course mere conditions, and not causes. The immediate cause of the kicking was the fact that the plaintiff attempted to crank the machine when the spark and gasoline regulators were turned on at full power. Here we find a human activity. Was it a juridic cause? If the plaintiff acted just as the ordinarily prudent man (whom the law takes as its standard) would have acted under similar circumstances, his conduct is to he considered as a part of the normal course of human affairs, and therefore as a *782medium instead of a cause. The defendant, through its able and earnest counsel, says that an ordinarily prudent man would not have cranked the automobile, knowing that the spark and gasoline were on the machine at their maximum. Counsel for the plaintiff, equally able, equally earnest, assert that while an ordinarily prudent man would not usually attempt to crank an automobile with the spark and gasoline thus on, still that an ordinarily prudent man is likely to do just this very thing if placed in the situation in which the plaintiff was placed — that the plaintiff had just passed through such a terrifying experience as would rob a man of ordinary prudence of the quality of judgment which he usually possesses and which usually guides his conduct. We recognize the principle that if a man has been robbed of his power of judgment by some act not within his control, his resulting lack of judgment becomes a part of the circumstances to be considered; it is in accordance with the rule we have stated, to compare his conduct with the conduct of an ordinarily prudent man under similar circumstances. In the normal course of human activities, which we have in mind as being the non-causal medium through which negligence may effectively operate, sickness, insanity, and other personal infirmities, both mental and physical, have a place. So, if we are testing the conduct of a particular sick man, the question is, how would the standard prudent man have acted if he had been sick just as the person in question was; the test proceeds along similar lines when the conduct of an insane, an infirm, or a frightened person is to be considered. It is true that in the case of a frightened person-we have the preliminary question as to whether an ordinarily prudent person would have become so frightened as the particular' person was under the circumstances; for we think that it is the part of prudence not to allow one’s self to become unduly frightened at causes normally insufficient to produce such an effect. The issue thus made as to what an ordinarily prudent man would have done if he had been circumstanced as the plaintiff was — frightened out of his senses, as he says he was and as the demurrer admits he was — is one that we as judges have no right to decide. It is a matter as to which fair and intelligent minds may easily differ, and is a question of fact. Such questions are for the jury to decide. Since the questions as to whether a reasonably prudent man frightened as the plaintiff was would have attempted to crank his machine with the *783power on at a máximum, and whether a reasonably prudent man would have experienced such fright as the plaintiff experienced from the circumstances in which he was placed, are jury-questions, we ihust, on demurrer, give the plaintiff the advantage of this point, and consider them as conditions of the injury, rather than causes of the injury.

Thus considering the fright of the plaintiff as a condition rather than a cause of his injury, we must further inquire if the alleged negligent act of the defendant bore such relation to this fright as to be considered as having caused it from the legal point of view. (It may be stated here that it is conceded that, in an .abstract sense, the act alleged against the defendant was a negligent act; and the question before this court is whether, such a causal connection exists between that act and the plaintiff’s injury as that the one may be held to be the juridic or proximate cause of the other.) We will test this by the standards stated above. If the negligence had not occurred, the fright would not have ensued. So, in the broad sense, the negligence was the cause of the fright. It is likewise fair to say that if it is conceded or established that a normally prudent man would have been similarly frightened under the conditions which surrounded the plaintiff as the immediate result of the defendant’s negligence, it follows as a necessary logical consequence that the negligence is to be considered as the preponderating cause in producing the fright.

Nothing appears in the case made by the facts stated in the petition to require a belief that, according to the ordinary- course of human probability, the fright and the consequent injury would have occurred if the negligence had not operated in a direct causal way upon the conditions surrounding the transaction. . We find the plaintiff coming lawfully and prudently within the range of the defendant’s activities; as he comes he is uninjured; while he is within the range of those activities the defendant violates the normal standard — acts as a reasonably prudent person would not have acted under the circumstances (for we are assuming the defendant’s negligence) ; and before the plaintiff gets from within the range of these activities he is hurt as the result of a condition to the creation of which these activities contributed in a causal way; wherever else we look among the sum total of the general causes which joined to create the condition and to charactéme it, we find no other varia-. *784tion from the normal course of prudence; we except all these other causes, class them as merely a part of the condition or innocuous medium through which the defendant’s negligent activities became effectual, and say that the defendant’s negligence was, therefore, the sole, direct, and proximate cause of the plaintiff’s injury.

To view the case in this way makes it seem simpler than when we try to decide it by any direct application of such undigested, ambiguous, and often misleading general terms as “proximate cause,” “natural and probable cause,” “controlling and preponderating cause,” “chief preponderating cause,” “remote consequence,” “what a reasonably prudent man should have foreseen under the circumstances,” “what follows as a natural result in the ordinary course of nature,” “interposition of separate, independent agencies,” and all those other phrases which swarm in the reports of negligence cases; but we think that in this more elemental view is reflected the true essence of all these law phrases.

Before the jury can find the defendant liable in this case, they must find that the act of the defendant in allowing the plaintiff to' come on the tracks and in shutting him in there while the train was coming was an act of negligence. If they find that this was negligence they must further (ind that the situation produced by this negligence was such as to frighten a normal person, and to frighten him to such a degree as so to rob him of memory and judgment that if he had been in the plaintiff’s situation, he (the normal person) would have likely forgotten the condition in which he left the spark and gasoline levers on his automobile, and would have had no better sense than to attempt to crank the machine without first examining the levers. If they find that the plaintiff experienced such a fright from the negligence of the defendant, and that the fright was natural and normal under the circumstances, and that the impulse and effect of this fright caused him to forget that his machine had been left in a dangerous condition, and caused him to omit such acts of prudence as an ordinarily prudent man would have performed before attempting to crank it, in order to move it off the track, and that while in this state of mind, thus temporarily rendered abnormal, he forgot the condition of the levers and attempted to crank the machine, unconscious of the danger, and was injured, such causal connection between the negligence and the damages is established as to authorize the jury to find the de*785fendant liable. On the other hand, if the jury should find that the (defendant’s acts were not negligent,'or that, if negligent, they were not such as to produce such a sense-robbing degree of fright in a normal person as to cause him to forget the condition of his machine or to neglect to take usual and ordinary precaution before attempting to crank it, or that the defendant’s forgetfulness of the dangerous condition of his machine, or his neglect to examine into its condition before attempting, to crank it, was the result of his own carelessness more largely than of any fright which he. had normally experienced, the jury should find for the defendant. Thus the question is one for the jury; and the court properly declined to solve it on demurrer. Judgment affirmed.

Cardozo, Ch. J.

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help *341him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper.

In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively , to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do” (Pollock, Torts [11th ed.], p. 455; Martin v. Herzog, 228 N. Y. 164, 170; cf. Salmond, Torts [6th ed.], p. 24). “Negligence is the absence of care, according to the circumstances” (Willes, J., in Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 688; 1 Beven, Negligence [4th ed.], 7; Paul v. Consol. Fireworks Co., 212 N. Y. 117; Adams v. Bullock, 227 N. Y. 208, 211; Parrott v. Wells-Fargo Co., 15 Wall. [U. S.] 524). The plaintiff as she stood upon the platform of the station might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor (Sullivan v. Dunham, 161 N. Y. *342(290). If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. “In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury” (McSherry, C. J., in W. Va. Central R. Co. v. State, 96 Md. 652, 666; cf. Norfolk & Western Ry. Co. v. Wood, 99 Va. 156, 158, 159; Hughes v. Boston & Maine R. R. Co., 71 N. H. 279, 284; U. S. Express Co. v. Everest, 72 Kan. 517; Emry v. Roanoke Nav. Co., 111 N. C. 94, 95; Vaughan v. Transit Dev. Co., 222 N. Y. 79; Losee v. Clute, 51 N. Y. 494; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; 1 Shearman & Redfield on Negligence, § 8, and cases cited; Cooley on Torts [3d ed.], p. 1411; Jaggard on Torts, vol. 2, p. 826; Wharton, Negligence, § 24; Bohlen, Studies in the Law of Torts, p. 601). “The ideas of negligence and duty are strictly correlative” (Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.

A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise *343which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to some one else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.

The argument for the plaintiff is built upon the shifting meanings of such words as “wrong” and “wrongful,” and shares their instability. What the plaintiff must *344show is “a wrong” to herself, i. e., a violation of her own right, and not merely a wrong to some one else, nor conduct “wrongful” because unsocial, but not “a wrong” to any one. 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 (Seavey, Negligence, Subjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson & Carpenter, 247 N. Y. 365). This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. “It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye” (Munsey v. Webb, 231 U. S. 150,156; Condran v. Park & Tilford, 213 N. Y. 341, 345; Robert v. U. S. E. F. Corp., 240 N. Y. 474, 477). Some acts, such as shooting, are so imminently dangerous to any one who may come within reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one’s peril (Jeremiah Smith, Tort and Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of Legal Liability, vol. 1, pp. 77, 78). Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B (Talmage v. Smith, 101 Mich. 370, 374). *345These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional (Parrot v. Wells-Fargo Co. [The Nitro-Glycerine Case], 15 Wall. [U. S.] 524). 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. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. 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. Confirmation of this view will be found in the history and development of the action on the case. Negligence as a basis of civil liability was unknown to mediaeval law (8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, *346pp. 189, 190). For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal (Holdsworth, op. cit. p. 453; Street, op. cit. vol. 3, pp. 258, 260, vol. 1, pp. 71, 74.) Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth (Holdsworth, op. cit. 450, 457; Wigmore, Responsibility for Tortious Acts, vol. 3, Essays in Anglo-American Legal History, 520, 523, 526, 533). When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case (Holdsworth, op. cit. p. 449; cf. Scott v. Shepard, 2 Wm. Black. 892; Green, Rationale of Proximate Cause, p. 19). The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime (Holland, Jurisprudence [12th ed.], p. 328). He sues for breach of a duty owing to himself.

The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 54; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264; Smith v. London & S. W. Ry. Co., L. R. 6 C. P. 14; 1 Beven, Negligence, 106; Street, op. cit. vol. 1, p. 90; Green, Rationale of Proximate Cause, pp. 88, 118; cf. Matter of Polemis, L. R. 1921, 3 K. B. 560; 44 Law Quarterly Review, 142). There is room for *347argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

Andrews, J.

(dissenting). Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling they injured the plaintiff, an intending passenger.

Upon these facts may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept — the breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypoth*348esis we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.

Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect oneself from the dangers resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word “unreasonable.” For present purposes it sufficiently describes that average of conduct that society requires of its members.

There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor, that is important. (Hover v. Barkhoof, 44 N. Y. 113; Mertz v. Connecticut Co., 217 N. Y. 475.) In criminal law both the intent and the result are to be considered. Intent again is material in tort actions, where punitive damages are sought, dependent on actual malice — not on merely reckless conduct. But here neither insanity nor infancy lessens responsibility. (Williams v. Hays, 143 N. Y. 442.)

As has been said, except in cases of contributory negligence, there must be rights which are or may be affected. Often though injury has occurred, no rights of him who suffers have been touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that the land be made safe. (Meiers v. Koch Brewery, 229 N. Y. 10.) Where a railroad is required to fence its tracks against cattle, no man’s rights are injured should he wander upon the road because such fence is absent. (Di Caprio v. N. Y. C. R. R., 231 N. Y. 94.) An unborn child may not demand immunity from personal harm. (Drobner v. Peters, 232 N. Y. 220.)

But we are told that “there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff *349himself and not merely to others.” (Salmond Torts [6th ed.], 24.) This, I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there — a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. (Perry v. Rochester Line Co., 219 N. Y. 60.) As was said by Mr. Justice Holmes many years ago, “the measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.” (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone.

It may well be that there is no such thing as negligence in the abstract. “Proof of negligence in the air, so to speak, will not do.” In an empty world negligence would not exist. It does involve a relationship between man and his fellows. But not merely a relationship between man and those whom he might reasonably expect his act would injure. Rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile away as surely as it does those on the scene. We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for *350the loss of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation— of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of father, wife or insured will prevent recovery, it is because we consider the original negligence not the proximate cause of the injury. (Pollock, Torts [12th ed.], 463.)

In the well-known Polemis Case (1921, 3 K. B. 560), Scrutton, L. J., said that the dropping of a plank was negligent for it might injure “workman or cargo or ship.” Because of either possibility the owner of the vessel was to be made good for his loss. The act being wrongful the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is. (Smith v. London & Southwestern Ry. Co., [1870-71] 6 C. P. 14; Anthony v. Staid, 52 Mass. 290; Wood v. Penn. R. R. Co., 177 Penn. St. 306; Trashansky v. Hershkovitz, 239 N. Y. 452.)

The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio case we said that a breach of a *351general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to every one. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.

If this be so, we do not have a plaintiff suing by “derivation or succession.” Her action is original and primary. Her claim is for a breach of duty to herself — not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.

The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property down stream. We are not liable if all this happened because of some reason other than the insecure foundation. But when injuries do result from our unlawful act we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen and unforseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.

These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or if you please, a net. An analogy is of little aid. *352Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.

Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last, inevitably no trace of separation remains. They are so commingled that all distinction is lost.

As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Serajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say the fire started by the lantern caused its destruction.

A cause, but not the proximate cause. What we do mean by the word “proximate” is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we used were *353simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.

Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent.

But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C’s injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.

The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing. May have some bearing, for the prob*354lem of proximate cause is not to be solved by any one consideration.

It is all a question of expediency. There are no fixed rules to govern our judgment. There are simply matters of which we may take account. We have in a somewhat different connection spoken of “the stream of events.” We have asked whether that stream was deflected — whether it was forced into new and unexpected channels. (Donnelly v. Pierey Contracting Co., 222 N. Y. 210). This is rather rhetoric than law. There is in truth little to guide us other than common sense.

There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attentuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or by the exercise of prudent foresight could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, where we passed upon the construction of a contract — but something was also said on this subject.) Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration — the force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can.

Once again, it is all a question of fair judgment, always *355keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.

Here another question must be answered. In the case supposed it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion although he had no reason to suppose it would follow a collision. “The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur’s negligence from being in law the cause of the injury.” But the natural results of a negligent act — the results which a prudent man would or should foresee — do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur is responsible.

It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences — not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.

This last suggestion is the factor which must determine the case before us. The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger’s foot, then to him. If it exploded *356and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the record — apparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief “it cannot be denied that the explosion was the direct cause of the plaintiff’s injuries.” So it was a substantial factor in producing the result — there was here a natural and continuous sequence — direct connection. The only intervening cause was that instead of blowing her to the ground the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.

Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.

The judgment appealed from should be affirmed, with costs.

Pound, Lehman and Kellogg, JJ., concur with Cardozo, Ch. J.; Andrews, J., dissents in opinion in which Crane and O’Brien, JJ., concur.

Judgment reversed, etc.

Opinion by

Mb. Justice Fell,

The plaintiff was a motorman in the employ of the "Wilkes-Barre and Wyoming Valley Traction Company on its line running from Wilkes-Barre to the borough of Sugar Notch. The ordinance by virtue of which the company was permitted to lay its track and operate its cars in the borough of Sugar Notch con-*348tamed a provision that the speed of the cars while on the streets of the borough should not exceed eight miles an hour. On the line of the road, and within the borough limits, there was a large chestnut tree, as to the condition of which there was some dispute at the trial. The question of the negligence of the borough in permitting it to remain must, however, be considered as set at rest by the verdict. On the day of the accident the plaintiff was running his car on the borough street in a violent wind-storm, and as he passed under the tree it was blown down, crushing the roof of the car and causing the plaintiff’s injury. There is some conflict of testimony as to the speed at which the car was running, but it seems to be fairly well established that it was considerably in excess of the rate permitted by the borough ordinance.

We do not think that the fact that the plaintiff was running his car at a higher rate of speed than eight miles an hour affects his right to recover. It may be that in doing so he violated the ordinance by virtue of which the company was permitted to operate its cars in the streets of the borough, but he certainly was not for that reason without rights upon the streets. Nor can it be said that the speed was the cause of the accident, or contributed to it. It might have been otherwise if the tree had fallen before the car reached it; for in that case a high rate of speed might have rendered it impossible for the plaintiff to avoid a collision which he either foresaw or should have foreseen. Even in that case the ground for denying him the right to recover would be that he had been guilty of contributory negligence, and not that he had violated a borough ordinance. ■ The testimony however shows that the tree fell upon the car as it passed beneath. With this phase of the case in view, it was urged on behalf of the appellant that the speed was the immediate cause of the plaintiff’s injury, inasmuch as it was the particular speed at which he was running which brought the car to the place of the accident at the moment when the tree blew down. This argument, while we cannot deny its ingenuity, strikes us, to say the least, as being somewhat sophistical. That his speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted. The same thing might as readily have happened to a car running slowly, or it might have been that a high speed *349alone would have carried him beyond the tree to a place of safety. It was also argued by the appellant’s counsel that, even if the speed was not the sole efficient cause of the accident, it at least contributed to its severity, and materially increased the damage. It may be that it did. But what basis could a jury have for finding such to be the case; and, should they so find, what guide could be given them for differentiating between the injury done this man and the injury which would have been done a man in a similar accident on a car running at a speed of eight miles an hour or less ?

The judgment is affirmed.

Opinion op the Court by

Judge Settle

— Affirming.

This action was instituted by the appellant, John Watson, in the court below, against the appellees, Kentucky & Indiana Bridge & Railroad Company, hereinafter called the Bridge & Railroad Company, the Southern Railway Company, the Southern Railway Company in Kentucky, and the Union Tank Line Company, to recover $20,000 damages for injuries sustained to his person on the night of June 14, 1907, from an explosion of gas caused, as alleged, by the negligence of the appellees. It was, in substance, alleged in the petition as amended that while a tank ear, owned by the appellee- Union Tank Line Company, and filled with a highly explosive substance, known as gasoline, was being transported through a populous section of the city of Louisville over the roadbed of the appellee Bridge & Railroad Company, it was derailed and its valve broken, thereby causing all the gasoline to escape and flow in large quantities on the street and into the gutters; that from the gasoline thus flowing and standing in pools upon the street and gutters there arose and spread over the neighborhood of the place of derailment and into the houses of the residents thereof, great quantities of highly explosive and combustible gas which, three hours after the 'derailment of the tank car, exploded with force from contact with a lighted match thrown on the street by one Chas. Duerr, who claimed to have used it in igniting a cigar; that the explosion threw appellant from his bed and almost demolished *622Ms house, from the ruins of which he was taken unconscious and bleeding with a fractured jaw and one cheek nearly torn from his face.- It was further charged in the petition that the explosion and appellant’s consequent injuries resulted from the negligence of all the appellees; the negligence of the Union Tank Line Company lying, as alleged, in its failure to provide a tank car with proper trucks and main valve; that of the Bridge & Railroad Company in failing to maintain in a safe condition the roadbed and track at the point of derailment; in permitting the tank car to remain at the place of derailment in its wrecked condition an unreasonable time, and in allowing ignorant and careless meddling on the part of their servants with the main valve of the tank after it was broken, whereby the flow of 'the gasoline from the tank was increased instead of diminished. All the material averments of the petition were specifically denied by the answer of the appellees. As on the trial the proof failed to show that either the Southern Railway Company, or the Southern Railway Company in Kentucky, was charged with the duty of maintaining the roadbed or tracks at the place of derailment or that they had handled or had anything to do with the tank car in question, appellant, at the conclusion of all the evidence, dismissed the action without prejudice as to those two appellees. At the conclusion of appellant’s evidence, the appellees Bridge & Railroad Company and Union Tank Line Company moved the court peremptorily to instruct the jury to find for them.. The motion was overruled, but being renewed by appellees after the introduction of all the evidence, it was sustained, and the jury, in obedience to the peremptory instruction then given by the court, returned a verdict in behalf *623of appellees, upon which judgment was entered in their favor for costs. Appellant being dissatisfied with that judgment and the refusal of the circuit court to grant him a new trial, has appealed.

The main question involved in this appeal is, whether or not the trial court- erred in giving the peremptory instruction. Its decision will require consideration of the evidence. It is conceded that the tank ear belonged to appellee Union Tank Line Company, and the evidence conclusively shows that it was loaded at Franklin, Pa., with gasoline. In reaching the consignee at Louisville, it passed over several lines of railroad, but was delivered by the Baltimore Ohio & Southwestern Railroad to the appellee Bridge & Railroad Company, in the city of Louisville, at what is known as the Yonngtown yards. The latter company wás at the time of the accident hauling the tank car, attached to one of its trains, from its railroad yards near the Ohio river to the place of business of the consignee in the southern part of the city. The derailment of the ear occurred about 7:30 o’clock in the evening between Walnut and Madison streets. The gasoline began at once to escape from the tank and continued to do ’ so for several hours until the tank was emptied. By the derailing of the car the discharge pipe beneath the tank provided for emptying it of its contents, was broken, as were the appliances for opening and closing the valves by which the contents were allowed to leave, or prevented from leaving the tank. The gasoline in escaping from the tank ran down a gutter or drain in the street and along appellee Bridge & Railroad Company’s right of way, several hundred feet to a sewer, into which it flowed. The employes of appellee Bridge & Railroad Company connected with the train in question, and *624later the wrecking crew called to. their assistance, seemed to be unable to stop the escape of gasoline from the tank, or at any rate did not do so. Prom the gasoline, vapor or gas of a highly combustible character arose and permeated the atmosphere a distance of 500 or 600 feet from the place of derailment. About 11:30 o ’clock, Charles Duerr, who with Charles Miller and two young women, designated in the record as the Warner girls, was standing in front of the Warner residence on Madison street, a square west of the place of the accident, struck a match which he threw to the ground, and this match in its descent came in contact with the gas generated by the flowing gasoline, thereby causing the explosion by which appellant was injured.

There is no disagreement between the parties as to the facts thus far stated, but there are several issues of fact yet to be considered with respect to which there is sharp controversy. One of the points of difference is as to the condition of the railroad track where the tank car was derailed. The evidence of appellant conduced to prove that it was defective and unsafe. Indeed, several witnesses introduced by him testified that the derailment of the car was caused by a low or loose joint in the rails which sank under the wheels of the car to such an extent as to throw it from the track, in leaving which it broke one of the rails; that the low joint was produced by the rottenness of the ties supporting it, want of ballast between the ties, and the flat or swampy condition of the roadbed at the place of derailment. According to the further statements of the witnesses in question the bad condition of the roadbed and track, as described, had continued a long time, and must have been known to those charged with the duty of keeping it *625in repair. On the other hand, a number of witnesses introduced by appellees were of opinion that the roadbed and track were in a reasonably safe condition and the testimony of some of them conduced to prove that there was no low joint in the rail and that the car left the track 26 feet' before reaching what appellant’s witnesses called the low joint, and that the derailment of the car was an unavoidable casualty or accident which could not, by the exercise of ordinary care, have been prevented. But considering the evidence as a whole, it cannot be denied that much of it was to the effect that the derailment was caused by the negligence of the appellee Bridge & Railroad Company in failing to keep its roadbed and track in repair. We find a much greater contrariety of evidence'as to appellant’s contention that the employes of the appellee Bridge & Railroad Company were negligent in handling the tank car after the derailment. It is apparent from the testimony of all the witnesses that the discharge pipe under the tank and the appliances for operating the tank valve were broken by the derailment of the car, and that the gasoline immediately began to escape. fUt was, however, stated by appellant’s witnesses that the escaping gasoline was at first but a small stream, but that appellee Bridge & Railroad Company’s servants in charge of the derailed ear by their negligence in handling it, increased the flow of gasoline therefrom.*'' This they stated was done by their opening a manhole on the top of the tank, and also by completely opening the valve at the bottom thereof in the effort to close it; that by thus opening the valve below and thereby removing the partial obstruction to the escape of the gasoline, the pressure of the air coming through the manhole above facilitat*626ed its flow, and such, increase of the flow created the greater quantity of gas in the surrounding atmosphere, which, in turn, increased the probability of an explosion, and added to the danger of all persons within the radius of its influence.

As already intimated, the testimony of appellee’s witnesses radically differed from that of appellant’s as to what was done to stop the escape of the gasoline after the derailment of the car. They all denied that they caused, or that there was, any increase in the flow of gasoline from the tank, and claimed that they did everything in their power to stop the leak; using for that purpose waste, mud, and other appliances after they discovered that the discharge pipe was broken, the valves open, and that the appliances for closing the valve would not perform their work. They further testified that their attempts to stop the leak were attended by great risk and danger to tlieir lives; that the bad odor of the gasoline was nauseating, the darkness interfered with their vision and movements, and the use of lanterns or torches near enough to the car to obtain a good view of the situation, would inevitably have resulted in an explosion of the gas escaping in great volume from the flowing gasoline. Whether the jury, if the case had been submitted to them, would have decided this issue of fact in accordance with the testimony of appellant’s witnesses cannot be known, but it is manifest that the issue was one to be determined by the jury if the case should have gone to them at all. Another issue of fact was as to whether the servants of appellee Bridge & Railroad Company 'gave residents near the place of the accident and persons traveling Madison street at that point warning against the dangers from the gas.

*627Appellant, and at least five other witnesses introduced in his behalf, testified that they lived, or happened to be near the place of the accident and saw or felt the force of the explosion, but that they received neither notice nor warning of the presence of gas.or that there.was danger of an explosion. Mrs. Kern, one of the witnesses, testified that she had lights in her house down to the time of the explosion, but that she was not warned to put them out. Appellees’ testimony tended to show that the railroad employes in charge of the wrecked car sent word to the train despatcher to keep trains away from the place of the accident: that they stationed guards around the place to keep spectators at a safe distance and to prevent lights from being brought into the gaseous atmosphere, and that the many people who went to the place of the accident were warned generally of the danger to be apprehended from the presence of the gas. It.will readily be seen that the testimony upon this issue was also conflicting.

There is no contrariety of proof as to the fact that Charles Duerr lighted the match that caused the explosion. Indeed, the act was admitted by him, but he testified that when it was done he and Miller, a companion, were standing on Madison street in front of the Warner residence a square from the derailed car, talking with the two Warner girls, the four having just returned from Shawnee Park; that he took a cigar and match from his pockets, struck, a light from the match, and ignited the cigar; that the explosion followed before the match reached the ground and that he was knocked down by the explosion. hle further testified that at the time of lighting the match he had just returned from Shawnee Park and knew nothing of the derailment of the tank car, or *628of tlie existence of the gas arising from the escaping gasoline, and that he did not intend to canse the explosion, nor did he know that the lighting of the "match would cause it. Duerr was corroborated by Miller and one of the Warner girls, and Mrs. Kern testified that she saw the two young men standing on Madison street and talking with the Warner girls, she being at her gate near them; that although she saw Duerr when he struck the match, she did not see him drop it, but saw that the explosion immediately followed the lighting of the match. W. G. Schnepp, who was near Duerr and his companions, said he did not see the match thrown, but heard a woman call out at that time for everybody to run, as some one had thrown a match. R, W. Polly, a witness for appellees, testified that he was across the street and within 60 feet of Duerr, Miller, and the Warner girls at the time of the explosion; that there was an electric light burning just above where they were standing and he could see them plainly; that neither of the young men had a cigar or pipe ¡"that he saw Duerr strike a match against the fence and ^throw it into the plainly visible vapor arising from the gasoline and that the explosion immediately followed."

Appellees were permitted to prove that Duerr, who had been a telegraph operator in the employ of the appellee Bridge & Railroad Company, was on the morning of the day of the explosion discharged from its service,"and that 20'minutes before the explosion Duerr remarked to his companion, in the hearing of Giacometti and Darnall, “Let us go and set the damn thing oh fire.”*' The foundation for the introduction of the testimony of Giacometti and Darnall was laid by first'obtaining from Duerr a denial that he had *629made the statement. Appellees introduced and had read to the jury,, an indictment against Duerr for feloniously burning a stable, and also a judgment showing that he was allowed, after waiving a trial by jury, to plead guilty to a misdemeanor, viz., the offense of unlawfully destroying the property of another, for which he was fined by the court $350. The peremptory instruction was granted by the trial court upon the theory that though the Bridge & Bail-road Company may have been guilty of negligence in permitting the tank car to be derailed, such negligence was not the proximate cause of the appellant’s injuries, but that the act of Duerr in lighting) and throwing the match, which the court declared was done purposely and in a spirit of wantonness, malice, or mischief, was the proximate cause thereof. We are clearly of opinion that the peremptory in-struetion, in so far as it required the jury to find for the appelllee Bridge & Bailroad Company was unauthorized.

A There was, as previously indicated, evidence from which the jury might have found the appellee Bridge & Bailroad Company guilty of negligence in failing to keep in proper repair and condition its. roadbed and track at the place where the tank car was derailed, and that such failure caused the derailment resulting in the escape from the tank of the gasoline, contact of the gas from which with the match lighted, by Duerr caused the explosion. There was also some evidence, very slight, it is true, tending to support appellant’s contentions.that the employes of the appellee Bridge & Bailroad Company were negligent in handling the car after its derailment, and in failing to sufficiently warn residents and others near the place of the accident against the dangers to be apprehend*630ed from the presence of the' gas produced by the escaping gasoline. n

The lighting of the match by Duerr having resulted in the explosion, the question is, was that act merely a contributing cause, or the efficient and, therefore, proximate cause of appellant’s injuries? The question of proximate cause is a question fo'r the jury.'* In holding that Duerr in lighting or throwing the match acted maliciously or with intent to cause the explosion, the trial court invaded the province of the jury* There was, it is true, evidence tending to prove that the act was wanton or malicious, but also evidence conducing to prove that it was inadvertently or negligently done by Duerr.*It was therefore for the jury and not the court to determine from all the evidence whether the lighting of the match was done by Duerr inadvertently or negligently, or whether it was a wanton and malicious act.'* As said in Milwaukee Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. 256: “The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of the circumstances of fact attending it. ’ ’ Snydor v. Arnold, 122 Ky. 557, 92 S. W. 289, 28 Ky. Law Rep. 1252. In Thompson on Negligence, section 161, it is said: “On principle, the rule must be here, as in other cases, that, before the judge can take the question away from the jury and determine it himself, the facts must not only be undisputed, but the inference to be drawn from those facts must be such that fair-minded men ought not to differ about them. It must be concluded that this is so, when it is considered that proximate cause is a cause which would probably, according to the experience of mankind, lead to the *631event which happened, and that remote cause is a-cause which would not, according to such experience, lead to such an event. Now, whether a given cause will probably lead to a given result- is plainly to be determined by the average experience of mankind; that is, by a jury rather than by a legal, scholar on the bench.” No better statement of the law of proximate cause can be given than is found in 21 Am. & Eng. Eney. of Law (2d Ed.) 490, quoted with approval in Louisville Home Telephone Company v. Gasper, 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578, 9 L. R. A. (N. S.) 548: “It is well settled that the mere fact that there have been intervening causes between the defendant’s negligence and the plaintiff’s injuries is not sufficient in law to relieve the former from liability; that is to say, the plaintiff’s injuries may yet be natural and proximate in law, although between the defendant’s negligence and the injuries other causes or conditions, or agencies, may have operated, and, when this is the case, the defendant is liable. So the defendant is clearly re^ sponsible where the intervening causes, acts, or conditions were set in motion by his earlier negligence, f or naturally induced by such wrongful act or omis- ( sion, or even, it is generally held, if the intervening/ j acts or conditions were of a nature the happening of V which was reasonably to have been anticipated, though they may have been acts of the plaintiff himself. An act or omission may yet be negligent and of a nature to charge a defendant with liability, although no injuries would have been sustained but for some intervening cause, if the occurrence of the latter might have been anticipated. * * * A proximate cause is that cause which naturally led to and which might have been expected to produce *632 I the result. * * * The connection of cause and I effect must be established. It is also a principle I well established that when an injury is caused by two 1 causes concurring to produce the result, for one of \yhich the defendant is responsible, and not for the other, the defendant cannot escape the responsibility. One is liable for an injury caused by the concurring negligence of himself and another to the same extent as for one caused entirely by his own negligence.” Black’s Law and Practice, section 21; Thompson on Negligence, sections 47-52; Whitaker’s Smith on Negligence, 27-; 29 Cyc. 488-502.

If the presence on Madison street in the city of Louisville of the great volume of loose gas that arose from the escaping gasoline was caused by the negligence of the appellee Bridge & Railroad Company, it seems to us that the probable consequences of its coming in contact with fire and causing an explosion was too plain a proposition to admit of doubt. Indeed, it was most probable that some one would strike a match to light a cigar or for other purposes in the midst of the gas. In our opinion, therefore, the act of one lighting and throwing a match under such circumstances cannot be said to be the efficient cause of the explosion. It did not of itself produce the explosion, nor could it have done so without the assistance and contribution resulting from the-primary negligence, if there was such negligence, on the part of the appellee Bridge & Railroad Company in furnishing the presence of the gas in the street. This conclusion, however, rests upon the theory that Duerr inadvertently or negligently lighted and threw the match in the gas. This view of the case is sustained by the following leading cases, all decided by this court: Snydor v. Arnold, 122 Ky. 557, 92 S. W. 289, *63328 Ky. Law Rep. 1252; Louisville Gas Co. v. Gutenkunt, 82 Ky. 432; Whitman-McNamara Tobacco Co. v. Warren, 66 S. W. 609, 23 Ky. Law Rep. 2120; Louisville Home Telephone Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578. 9 L. R. A. (N. S.) 548. The cases supra are, indeed, in point of fact and principle so analogous to the case under consideration as to completely control its determination, and to render further discussion of it unnecessary.

If, however, the act of Duerr in lighting the match‘d and throwing it into the vapor or gas arising from the gasoline was malicious, and done for the purpose of causing the explosion, we do not think appellees would he responsible, for while the appellee Bridge & Bailroad Company’s negligence may have been the efficient cause of the presence of the gas in the street, and it should have understood enough of the consequences thereof to have foreseen that an explosion was likely to result from the inadvertent or negligent lighting of a match by some person who was ignorant of the presence of .the gas or of the effect of lighting or throwing a match in it, it could not have foreseen or deemed it probable that one would maliciously or wantonly do such an act for the evil purpose of producing the explosion. Therefore, if the act of Duerr was malicious, we quite agree with the trial court that it was one which the appellees could not reasonably have anticipated or guarded against, and in such case the act of Duerr, and not the primary negligence of the appellee Bridge & Bailroad Company, in any of the particulars charged, was the efficient or proximate cause of appellant’s injuries. The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty *634of the primary, negligence from liability, bnt if the intervening agency is something so unexpected or extraordinary as that he conld not or ought not to have anticipated it, he will not be liable and certainly he is not bound to anticipate the criminal acts of others b3 which damage is inflicted, and hence is not liable therefor. 29 Cyc. 501-512; Sofield v. Sommers, 9 Ben. 526, 22 Fed. Cas. 769, Cas. No. 13,157; Andrews v. Kinsel, 114 Ga. 390, 40 S. E. 300. 88 An. St. Rep. 25.

j'/ The record shows no cause of action whatever ^against the Union Tank Line Company. The only /ycomplaint against it is that the tank car was defective. I The testimony conclusively shows that the car was inspected at Franklin, Pa., before its delivery to the ' railroad company there for transportation to Louisville, and was found to be in good condition; that it remained in such condition on the way to Louisville and such was its, condition when delivered to appellee Bridge and Railroad Company, at Louisville. On the other hand, the appellant introduced no evidence to show that the car was not properly constructed, that an3” of its appliances were defective, or that it was leaking prior to the time of the accident. This being! true, it is patent that the derailment of the car broke' or injured it to such an extent as to cause the escape of the oil, and with that accident the appellee, Union! ¿Tank Line Company, had nothing to do and was in! "y’no sense responsible therefor. The peremptory in-I struction, therefore, so far as the appellee, Union! '‘Tank Line Company, was concerned, was proper.-

We do not think the court erred in allowing the indictment against Duerr for burning the stable, or the judgment showing what disposition was made of the case, to be read to the jury. The stable was de*635stroyed by tlie gas explosion. Tlie plea of Duerr to tlie indictment was a confession that he unlawfully caused it to be burned, jj-though its destruction resulted from his ligktjp^f the match. The record, therefore, tended tojpmtradict his testimony in this case that his act in producing the explosion was not malicious. We are of opinion, however, that the trial court erred in refusing to permit Duerr to testify as to the circumstances under which the plea was made and the trial had, and that in entering the plea of guilty as indicated, and submitting to the imposition of the fine, lie acted upon the advice of his counsel.

We also think that the testimony of Giacometti and Darnall showing the threat of Duerr to cause the explosion was properly admitted for the purpose of contradicting Duerr, who had previously denied making the threat. But the testimony, as well as that furnished by tlie indictment and judgment, should have been considered by the jury, only for the purpose of affecting Duerr’s credibility as a witness, and the court should have so told the jury.

For the reasons indicated, the judgment is affirmed as to the Union Tank Line Company, but reversed as to the Bridge & Railroad Company, and cause remanded for a new trial consistent with .the opinion.

On petition for rehearing,

June 17, 1910.

Settle, J.

The petition for appellees asks a withdrawal of so much of the opinion as declares the statements of Duerr, made in the hearing of Giacometti and Darnell just before the explosion, and the evidence furnished by the indictment against him and judgment thereon, were competent only for the purpose of affecting his credibility as a witness, and *636that the court hold it competent as substantive evidence.

Upon reconsideration of the matter, we have reached the conclusion that the testimony of Giacometti and Darnell as to the declarations or threats made by Duerr immediately before the explosion should be admitted as substantive evidence conducing: to prove what his motive was in lighting and throwing the match into the gas. But as the indictment against him was returned, and his conviction thereunder occurred, after the explosion, we adhere to the conclusion expressed in the opinion that the evidence furnished by them is .competent only for the purpose of affecting Duerr’s credibility as a witness, as explained in the opinion.

The opinion is modified to the extent indicated, but the petition in other respects is overruled.

*29OPINION OF THE COURT

Chief Judge Cooke.

A school that negligently fails to secure dangerous chemicals from unsupervised access by children will not be relieved of liability when an injury occurs and it is reasonably foreseeable that the chemicals might be stolen by children.

During 1972, as part of a summer youth program sponsored by the Buffalo Board of Education, two 15-year-old students were hired to assist the custodial staff at Kensington High School. On July 11, while the adult employees were on their coffee break, the two, unsupervised student employees went to the school’s chemistry laboratory. Neither the laboratory nor its adjacent storeroom were locked. The employees took some magnesium powder and potassium nitrate from glass jars, placed the chemicals into plastic sandwich bags, and dropped the bags from a fourth story window into the bushes below. They intended to retrieve the chemicals after work that day.

The infant plaintiff, then eight years old, lived near the school and regularly played on its grounds. On the day of the accident, as he had done previously, the child walked along a trodden path behind the bushes where the chemicals had been dropped. He found the chemicals and, believing them to be sand, began playing with the chemicals and with matches he had earlier found. The chemicals exploded and the boy sustained second degree burns to his hands, arms and face.

Plaintiffs brought this negligence action and the jury found the board of education liable for the infant plaintiff’s injuries. This appeal presents issues concerning the scope of defendant’s duty to secure dangerous chemicals stored on school premises, whether defendant breached this duty, and, if so, whether defendant’s breach proximately caused plaintiff’s injury. This court now affirms.

A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition (see Basso v Miller, 40 NY2d 233, 241). Defining the nature and scope of the duty and to whom the duty is owed requires consideration of the likelihood of *30injury to another from a dangerous condition or instrumentality on the property; the severity of potential injuries; the burden on the landowner to avoid the risk; and the foreseeability of a potential plaintiff’s presence on the property (see id.; see, also, Danielenko v Kinney Rent-A-Car, 57 NY2d 198, 204-205; Akins v Glens Falls City School Dist., 53 NY2d 325, 329-330; Di Salvo v Armae, Inc., 41 NY2d 80, 82-83).

First deciding to whom a duty, if any, was owed, plaintiff’s presence on the school grounds could be found to be foreseeable. By their very nature, a school and its playgrounds attract children. In addition, Kensington High School is located in a residential neighborhood. It is true that the boy’s accident occurred when school was out of session, a factor germane to the issue of the foreseeability of his presence on the grounds. This, however, does not vitiate defendant’s duty to the infant plaintiff because there was proof that school authorities were aware that children played on the school property during the summer months.

Consideration now turns to what constituted reasonable care under the circumstances and whether defendant exercised that care. Defendant maintained on the school premises a store of dangerous chemicals for use in science classes. Defendant recognized that unsupervised access to these chemicals by children created a grave risk of harm to all present on the school grounds. The dangers inherent in many of the chemicals stored at the school included flammability and toxicity.

T^he superintendent of schools recognized the potential safety problem and promulgated regulations entitled “Safety in the Science Classroom and Laboratory”. The regulations unambiguously provided that “[pjupils are not allowed in science classrooms, laboratories, storerooms or preparation room when the teacher is not present. These rooms should be kept locked when not in use.” The regulations also stated that “[c]ombustible materials, e.g. red phosphorous and magnesium should be stored in a locked, fireproof cabinet.” Finally, a chemistry teacher who had been on the school’s faculty for 21 years testified that as a general practice, special security measures were necessary *31for chemicals that “would be likely to cause trouble * * * if gotten in poor hands.”

The severity of potential injuries from the misuse of chemicals is manifest. Accounts of children being maimed, blinded, or killed by playing with dangerous substances are legion. This danger could be averted with great ease and at little cost merely by storing the chemicals in a locked, fireproof cabinet — a remedy recognized in defendant’s own regulations.

Thus, defendant purposely maintained a store of chemicals, some of which were inherently dangerous, and recognized that, in the environs of a school, a serious hazard would arise if deliberate safeguards were not in place. Reasonable care under the circumstances required the securing of the dangerous chemicals in such a way that their unsupervised access could not be readily obtained by children (cf. Kingsland v Erie County Agric. Soc., 298 NY 409, 426). In light of the foreseeability of the risk and potential severity of harm to others engendered by a breach of this duty and the ease with which this duty could be satisfied, the jury acted rationally in finding that defendant failed to exercise reasonable care under the circumstances by failing to secure the dangerous chemicals from unsupervised access by school children.

Defendant’s breach of duty was comprised of two elements. First, defendant failed to adequately supervise its two student employees.1 The director of the summer employment program testified that “the key word is supervision” in the operation of the program. One of the program’s co-ordinators admitted that he had expected the two student employees to be under complete supervision at all times. Nevertheless, the adults charged with overseeing the students left them alone for 30 minutes each day when *32they went to the school’s basement for their coffee break. The students were told to stand by until the ádults returned. It was during one of these periods that the students took the chemicals that eventually caused plaintiff’s injuries.

Defendant’s argument that it should be liable only for the acts of its employees done in the scope of their employment and that here the students acted outside the scope of their employment is inapposite. Defendant’s duty in this case is not predicated on its status as an employer. Rather, the control and supervision of school-aged children present within the building, whether as students or employees, is an essential part of defendant’s duty to secure dangerous chemicals from the children’s access.2

The second element of defendant’s negligence was its failure to adequately secure the dangerous chemicals. There was testimony that, on the day of the accident, the door leading from the corridor to the laboratory was unlocked. The door connecting the laboratory and the storeroom could not be locked because the custodial staff had no key. Finally, in direct contravention of one of its safety regulations, defendant failed to maintain a locked, fireproof cabinet for storage of the chemicals. As a consequence of defendant’s acts, children were left unsupervised in a building with unsecured dangerous chemicals, a situation defendant had expressly recognized would create a grave safety risk.

There remains the issue whether defendant’s breach proximately caused plaintiff’s injury. To establish a prima facie case, plaintiff must show that “defendant’s negligence was a substantial cause of the events which produced the *33injury” (Derdiarian v Felix Contr. Co., 51 NY2d 308, 315). An interruption of the nexus between defendant’s negligence and plaintiff’s injury by the act of a third party may affect defendant’s liability. An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant (see, e.g., Martinez v Lazaroff, 48 NY2d 819; Kingsland v Erie County Agric. Soc., 298 NY 409, supra; Perry v Rochester Lime Co., 219 NY 60; Hallenbeck v Lone Star Cement Corp., 273 App Div 327, affd no opn 299 NY 777). When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist (see Derdiarian v Felix Contr. Co., supra; Parvi v City of Kingston, 41 NY2d 553; Prosser, Torts [4th ed], § 44, pp 272-280).

Defendant argues that the student employees’ stealing of the chemicals was an intentional act aqd, hence, a superseding cause of plaintiff’s injury, relieving it of liability. Defendant is correct that an intervening intentional or criminal act will generally sever the liability of the original tort-feasor (see Perry v Rochester Lime Co., supra; Prosser, Torts [4th ed], § 44, p 287), but, on the facts here, it may not rely on this doctrine.

That doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Restatement, Torts 2d, §§448, 449). Defendant’s duty was to take reasonable steps to secure the dangerous chemicals from unsupervised access by children. By its very definition, any breach of this duty that leads to injury will involve an intentional, unauthorized taking of chemicals by a child. When the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs.

In this case, the Trial Judge charged the jury that it must consider whether the theft of the chemicals by the *34student workers was foreseeable and that if it found that “a reasonably prudent person would not have foreseen the act of the third person as a probable consequence of defendant’s negligence, then the defendant is not responsible for plaintiff’s injuries and your verdict must be for the defendant.” The verdict for plaintiff carried the implicit finding that such third-party intervention was reasonably to have been foreseen, and there is sufficient evidence in the record to sustain this finding.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.

Order affirmed, with costs.

Cardozo, J.

The action is for personal injuries.

The defendant operates an electric railway between Buffalo and Niagara Falls. There is a point on its line where an overhead crossing carries its tracks above those of the New York Central and the Erie. A gradual incline upwards over a trestle raises the tracks to a height of twenty-five feet. A turn is then made to the left at an angle of from sixty-four to eighty-four degrees. After making this turn, the line passes over a bridge, *179which is about one hundred and fifty-eight feet long from one abutment to the other. Then comes a turn to the right at about the same angle down the same kind of an incline to grade. Above the trestles, the tracks are laid on ties, unguarded at the ends. There is thus an overhang of the cars, which is accentuated at curves. On the bridge, a narrow footpath runs between the tracks, and beyond the line of overhang there are tie rods and a protecting rail.

Plaintiff and his cousin Herbert boarded a car at a station near the bottom of one of the trestles. Other passengers, entering at the same time, filled the platform, and blocked admission to the aisle. The platform was provided with doors, but the conductor did not close them. Moving at from six to eight miles an hour, the car, without slackening, turned the curve. There was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes to a. bridge. The cry was raised, “Man overboard.” The car went on across the bridge, and stopped near the foot of the incline. Night and darkness had come on. Plaintiff walked along the trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he thought to find his cousin’s body. He says that he was asked to go there by the conductor. He says, too, that the conductor followed with a lantern. Both these statements the conductor denies. Several other persons, instead of ascending the trestle, went beneath it, and discovered under the bridge the body they were seeking. As they stood there, the plaintiff’s body struck the ground beside them. Reaching the bridge, he had found upon a beam his cousin’s hat, but nothing else. About him, there was darkness. He missed his footing, and fell.

The trial judge held that negligence toward Herbert Wagner would not charge the defendant with liability for injuries suffered by the plaintiff unless two other facts were found: First, that the plaintiff had been *180invited by the conductor to go upon the bridge; and second, that the conductor had followed with a light. Thus limited, the jury found in favor of the defendant. Whether the limitation may be upheld, is the question to be answered.

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the- range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is hable to the child that falls into the stream, but hable also to the parent who plunges to its aid (Gibney v. State of N. Y., 137 N. Y. 1). The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path (Eckert v. L. I. R. R. Co., 43 N. Y. 502. Cf. Matter of Waters v. Taylor Co., 218 N. Y. 248). The rule is the same in other jurisdictions (Dixon v. N. Y., N. H. & H. R. R. Co., 207 Mass. 126, 130, and Bond v. B. & O. R. R. Co., 82 W. Va. 557, with cases there cited. Cf. 1 Beven on Negligence, 157, 158). The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had (Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264, 280, 281).

The defendant says that we must stop, in following the chain of causes, when action ceases to be “instinctive.” By this, is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened. In this case, the plaintiff walked more than four hundred feet in going to Herbert’s aid. *181He had time to reflect and weigh; impulse had been followed by choice; and choice, in the defendant’s view, intercepts and breaks the sequence. We find no warrant for thus shortening the chain of jural causes. We may assume, though we are not required to decide, that peril and rescue must be in substance one transaction; that the sight of the one must have aroused the impulse to the other; in short, that there must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. If all this be assumed, the defendant is not aided. Continuity in such circumstances is not broken by the exercise of volition (Twomley v. C. P., N. & E. R. R. R. Co., 69 N. Y. 158; Donnelly v. Piercy Contracting Co., 222 N. Y. 210; Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 54). So sweeping an exception, if recognized, would leave little of the rule. “The human mind,” as we have said (People v. Majone, 91 N. Y. 211, 212), “acts with celerity which it is sometimes impossible to measure.” The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.

The defendant finds another obstacle, however, in the futility of the plaintiff’s sacrifice. He should have gone, it is said, below the trestle with the others; he should have known, in view of the overhang of the cars, that the body would not be found above; his conduct was not responsive to the call of the emergency; it was a wanton exposure to a danger that was useless (Miller v. Union Ry. Co. of N. Y. City, 191 N. Y. 77, 80). We think the quality of his acts in the situation that confronted him was to be determined by the jury. Certainly he believed that good would come of his search upon the bridge. He was not going there to view the landscape. The law cannot say of his belief that a reasonable man would have been unable to share it. He could not know *182the precise point at which his cousin had fallen from the car. If the fall was from the bridge, there was no reason why the body, caught by some projection, might not be hanging on high, athwart the tie rods or the beams. Certainly no such reason was then apparent to the plaintiff, or so a jury might have found. Indeed, his judgment was confirmed by the finding of the hat. There was little time for delay, if the facts were as he states them. Another car was due, and the body, if not removed, might be ground beneath the wheels. The plaintiff had to choose at once, in agitation and with imperfect knowledge. He had seen his kinsman and companion thrown out into the darkness. Rescue could not charge the company with liability if rescue was condemned by reason. “Errors of judgment,” however, would not count against him, if they resulted “from the excitement and confusion of the moment” (Corbin v. Philadelphia, 195 Penn. St. 461, 472). The reason that was exacted of him was not the reason of the morrow. It was reason fitted and proportioned to the time and the event.

Whether Herbert Wagner’s fall was due to the defendant’s negligence, and whether plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the emergency confronting him, were questions for the jury.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

Hiscock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgments reversed, etc.

OPINION

SERNA, Justice.

{1} Plaintiffs-Appellants Kenneth Herrera, personal representative of Octavio Ruiz, and Jose Eneinias filed a complaint for wrongful death and personal injury against Defendanb-Appellee Quality Pontiac, a corporation doing business in Albuquerque, New Mexico, following a traffic accident caused by *47a thief who stole a car from Defendant’s lot. The district court dismissed the case with prejudice for failure to state a claim for which relief can be granted. See Rule 1-012(B)(6) NMRA 2003. The Court of Appeals certified the matter to this Court. See NMSA 1978, § 34-5-14(0 (1972); Rule 12-606 NMRA 2003. We reverse the district court.

I. Facts and Background

{2} “A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the factual allegations óf the pleadings which, for purposes of ruling on the motion, the court must accept as true.” Coleman v. Eddy Potash, Inc., 120 N.M, 645, 650, 905 P.2d 185, 190 (1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶23 & n. 3, 131 N.M. 272, 34 P.3d 1148. Plaintiffs alleged the following facts in their complaint. On May 27,1996, an individual took his ear to Defendant for repairs. At Defendant’s direction, the owner left the keys in the car and the doors unlocked. The lot was fenced, and the gate was unlocked. After 9:00 p.m., Billy Garcia entered the lot, apparently looking inside the cars for something to steal. Garcia stole the vehicle in question. The following day, at approximately 11:00 a.m., a Bernalillo County deputy sheriff observed Garcia driving quickly through a school zone and pursued him, engaging his emergency lights and sirens. Garcia drove at a speed of up to ninety miles per hour and collided head on with Plaintiffs’ car, which had pulled over onto the shoulder after hearing the sirens. One occupant was killed and the other seriously injured.

{3} Plaintiffs presented an affidavit of a sociologist to the district court that asserted that “[t]he Albuquerque metropolitan area’s motor vehicle theft rate of 1,345.5 per 100,000 residents was the second highest rate in the nation in 1997.”1 The expert estimated that between forty-five and eighty percent of stolen cars had been left unlocked and that between nineteen and forty-seven percent of stolen cars had the ignition keys left inside. The expert claimed that a high proportion of thefts were for the purpose of joyriding and short term transportation. The expert estimated that there is a high probability that a stolen car will be involved in traffic accidents, relying on a study which “found that nearly [seventeen percent] of all stolen cars are involved in accidents in a matter of hour’s or days after their theft,” and another study which found “the accident rate for stolen cars [to be] approximately 200 times the accident rate for cars that have not been stolen.” The expert relied on a study which found that “police pursuit was involved in [thirty-seven] percent of the motor vehicle theft cases examined [in a] national sample.”

{4} As a result of Plaintiffs’ inclusion of this affidavit, we treat the motion to dismiss as a motion for summary judgment. See Rule 1-012(B) (“If ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.”). However, the standard of review effectively remains the same; this Court accepts as true the facts as alleged by Plaintiffs in their complaint as well as those in their affidavit to determine whether, as a matter of law, Defendant is entitled to judgment. See GCM, Inc. v. Ky. Cent. Life Ins. Co., 1997-NMSC-052, ¶ 13, 124 N.M. 186, 947 P.2d 143.

{5} Defendant, relying on a series of New Mexico cases, argued that there is no liability on its part in this situation. New Mexico precedent clearly supports Defendant’s position in this case. Plaintiffs ask this Court to overrule our prior cases and follow the minority position of other jurisdictions. For the reasons that follow, we agree with Plaintiffs’ position.

II. Discussion

A. Duty

1. Introduction

{6} Generally, a negligence claim requires the existence of a duty from a de*48fendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiffs damages. “In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.” Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990); accord Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990). “Negligence is generally a question of fact for the jury. A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant. Whether a duty exists is a question of law for the courts to decide.” Schear v. Bd. of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984) (citations omitted); accord Solon v. WEK Drilling Co., 113 N.M. 566, 571, 829 P.2d 645, 650 (1992) (“It is thoroughly settled in New Mexico, of course, that whether the defendant owes a duty to the plaintiff is a question of law.”); Calkins, 110 N.M. at 61, 792 P.2d at 38 (stating that the question of duty “must be decided as a matter of law by the judge, using established legal policy”).

{7} Thus, we analyze whether one in possession of a vehicle owes a duty to an individual injured as the result of an accident caused by the negligent or criminal acts of a third party who stole the car as a threshold question of law. See Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, ¶ 9, 126 N.M. 404, 970 P.2d 590; Leyba v. Whitley, 120 N.M. 768, 771, 907 P.2d 172, 175 (1995) (“Whether [defendant attorneys] owed a duty to [a plaintiff] is a question of law and is based upon policy considerations.”) (citations omitted). “If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant.” Ramirez, 100 N.M. at 541, 673 P.2d at 825. Foreseeability of a plaintiff alone, however, does “not end the inquiry for the imposition of a duty.” Lester, 1998-NMSC-047, ¶ 9,126 N.M. 404, 970 P.2d 590; see also Leyba, 120 N.M. at 771, 907 P.2d at 175. “Policy determines duty.” Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995). “The existence of a tort duty is a policy question that is answered by reference to legal precedent, statutes, and other principles of law.” Ruiz v. Garcia, 115 N.M. 269, 272, 850 P.2d 972, 975 (1993); accord Leyba, 120 N.M. at 771, 907 P.2d at 175; Calkins, 110 N.M. at 62, 792 P.2d at 39.

{8} On the other hand, proximate cause is generally a question of fact for the jury. Calkins, 110 N.M. at 61, 792 P.2d at 38 (noting that proximate cause is a question of fact). As this Court has frequently noted, questions of both proximate cause and duty are related to the concept of foreseeability. “Integral to both [duty and proximate cause] is a question of foreseeability.” Id. “Both questions of foreseeability are distinct; the first must be decided as a matter of law by the judge, using established legal policy in determining whether a duty was owed petitioner, and the second, proximate cause, is a question of fact.” Calkins, 110 N.M. at 61, 792 P.2d at 38. “Duty and foreseeability have been closely integrated concepts in tort law since the court in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928) stated the issue of foreseeability in terms of duty.” Ramirez, 100 N.M. at 541, 673 P.2d at 825.

The duty element of negligence focuses on whether the defendant’s conduct foresee-ably created a broader “zone of risk” that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open.

McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) (citation and footnote omitted); see Calkins, 110 N.M. at 61, 792 P.2d at 38.

{9} We have expressed that “there is nothing sacred about ‘duty,’ which is nothing more than a word, and a very indefinite one, with which we state our conclusion.” *49 Ramirez, 100 N.M. at 541, 673 P.2d at 825 (quoted authority and quotation marks omitted). Ultimately, a duty exists only if “the obligation of the defendant [is] one to which the law will give recognition and effect.” Id. In other words, a duty “establishes the legally recognized obligation of the defendant to the plaintiff.” Id. The Court of Appeals has similarly recognized that duty requires analysis of both foreseeability and policy.

Our Supreme Court has long recognized, however, that the question of duty is not merely a matter of determining whether a particular plaintiff, a particular event, and a particular injury are foreseeable. In Ramirez, for example, the Supreme Court focused on foreseeability and whether the obligation of the defendant is one to which the law will give recognition and effect.

Madrid v. Lincoln County Med. Ctr., 121 N.M. 133, 139, 909 P.2d 14, 20 (Ct.App.1995) (quotation marks and quoted authority omitted), aff'd, 1996-NMSC-049, ¶31, 122 N.M. 269, 923 P.2d 1154 (affirming on the ground of “[s]ound public policy”).

{10} In the present case, we determine whether, as a threshold question of law, one who leaves an unattended and unlocked vehicle with its ignition keys inside foreseeably creates a zone of risk and a general unreasonable threat of harm and thus owes a duty of ordinary care to others injured in a resulting automobile accident caused by the criminal or negligent actions of a third party. For our duty analysis, “it must be determined that the injured party was a foreseeable plaintiff — that he [or she] was within the zone of danger created by [the defendant’s] aetions[ — ] ... as a matter of law by the judge, using established legal policy .... ” Calkins, 110 N.M. at 61, 792 P.2d at 38. We must analyze whether, as a matter of policy as well as foreseeability, one in such circumstances has an obligation to the injured party for which we will give legal effect and recognition.

2. Whether Defendant Owed Plaintiffs a Statutory Duty

{11} In analyzing whether Defendant owed a duty to Plaintiffs, we first address Plaintiffs’ assertion that Defendant owed them a statutory duty. See Ruiz, 115 N.M. at 272, 850 P.2d at 975 (stating duty in terms of a policy question based upon statutes, precedent, or other principles of law). “With deference always to constitutional principles, it is the particular domain of the [Legislature, as the voice of the people, to make public policy.” Torres, 119 N.M. at 612, 894 P.2d at 389. Our Legislature has directed that

[n]o person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key and effectively setting the brake, or placing the transmission in parking position, thereon and, when standing upon any grade, turning the front wheels in such manner that the vehicle will be held by the curb or will leave the highway if the brake fails. A violation of this section shall not mitigate the offense of stealing a motor vehicle, nor shall the provisions of this section or any violation thereof be admissible as evidence in a civil action for the recovery of a stolen vehicle, or in any other civil action arising out of the theft of a motor vehicle.

NMSA 1978, § 66-7-353 (1978).

{12} The purpose of Section 66-7-353 is to protect the welfare and safety of the public by requiring owners of cars to take reasonable measures “to prevent acts which could lead to an automobile inadvertently moving without intention that it should,” Bouldin v. Sategna, 71 N.M. 329, 332, 378 P.2d 370, 372 (1963), and we believe that the provision, by requiring that one in possession of an automobile take reasonable measures to avoid leaving the keys in the ignition, implicitly contains a policy to deter theft. See Richardson v. Carnegie Library Rest., Inc., 107 N.M. 688, 701, 763 P.2d 1153, 1166 (1988) (recognizing that preventing the theft of automobiles left unlocked and unattended with the keys in the ignition “would be conducive to promoting public safety”), limited on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶¶ 19-30, 36, 125 N.M. 721, 965 P.2d 305 (limiting Richardson’s application of intermediate scrutiny to non-governmental defendants). However, because, as Defendant asserts, vio*50lation of Section 66-7-353 is inadmissible as evidence in any civil action arising out of the theft of a vehicle, we cannot conclude that the statute demonstrates -a legislative intent to create a duty. Further, the Legislature has explicitly limited application of this provision to the “operation of vehicles upon highways,” NMSA 1978, § 66-7-2 (2001), and the thief stole the vehicle at issue in the present ease from a fenced lot, not a highway.

{13} Although, as Plaintiffs note, a few jurisdictions have held that statutes similar to Section 66-7-353 create a duty, see, e.g., Vining v. Avis Rent-A-Car Sys., Inc., 354 So.2d 54, 56 (Fla.1977) (noting that “[t]he legislature recognized that an automobile placed in the hands of an unauthorized person was more likely to be operated in a manner hazardous to the well being of the general public”), the majority of jurisdictions have rejected the notion that this type of provision creates a statutory duty. E.g., Kim v. Budget Rent A Car Sys., Inc., 143 Wash.2d 190, 15 P.3d 1283, 1287-88 (2001) (en banc). We agree with the majority position on this issue and thus reject Plaintiffs’ reliance on the statute as the source of a duty in this case. Nevertheless, we do not believe that the absence of a duty in Section 66-7-353 resolves the question in this case.

3. Whether Defendant Owed Plaintiffs a Common Law Duty

{14} Because we conclude that the Legislature has not articulated a statutory duty, we next determine whether a common law duty extends from Defendant to Plaintiffs. “Courts should make policy in order to determine duty only when the body politic has not spoken and only with the understanding that any misperception of the public mind may be corrected shortly by the [Legislature.” Torres, 119 N.M. at 612, 894 P.2d at 389.

(a) Stare Decisis

{15} As noted above, New Mexico precedent resolves this issue in Defendant’s favor. See Bouldin, 71 N.M. at 333, 378 P.2d at 373. Plaintiffs ask this Court to overrule Bouldin.

Stare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law. It promotes very important principles in the maintenance of a sound judicial system: 1) stability of the law; 2) fairness in assuring that like eases are treated similarly; and 3) judicial economy.

However, the principle of stare decisis does not require that we always follow precedent and may never overrule it.

Trujillo, 1998-NMSC-031, ¶¶ 33-34, 125 N.M. 721, 965 P.2d 305 (citations omitted). We require special justification in order to depart from precedent. Id. ¶ 34.

Particular questions must be considered before overturning precedent: 1) whether the precedent is so unworkable as to be intolerable; 2) whether parties justifiably relied on the precedent so that reversing it would create an undue hardship; 3) whether the principles of law have developed to such an extent as to leave the old rule “no more than a remnant of abandoned doctrine;” and 4) whether the facts have changed in the interval from the old rule to reconsideration so as to have “robbed the old rule” of justification.

Id. (quoting Planned Parenthood v. Casey, 505 U.S. 833, 855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)).

This Court always demonstrates the highest regard for stare decisis, but when one of the aforementioned circumstances convincingly demonstrates that a past decision is wrong, the Court has not hesitated to overrule even recent precedent. Furthermore, the application of stare decisis is less compelling in tort cases than in property or contract settings.

Id. ¶ 35 (citation omitted). As discussed below, we conclude that both the third and fourth Trujillo considerations are present in this ease. The adoption of comparative fault is a significant development in the law that leaves the analysis in Bouldin a mere remnant of an abandoned doctrine. The fact that there is a high rate of automobile theft and that stolen vehicles are more frequently involved in accidents are factual changes in the interval from the old rule which have *51robbed the old rule of justification. We believe that these considerations merit departure from stare decisis.

(b) Bouldin

{16} In Bouldin, the plaintiff alleged that the defendant parked his vehicle at a lounge, left it unattended, “and negligently failed to remove the ignition keys” from the vehicle. Bouldin, 71 N.M. at 330, 378 P.2d at 371. An unknown individual or group of people “borrowed or stole the truck and later abandoned it in the middle of the highway,” and the plaintiff collided with it. Id. In Bouldin, this Court addressed the question of whether “the owner of a car who leaves it unattended and without removing the key ... [is] liable for injuries to persons and property suffered when the car is hit after its having been abandoned on the highway by a thief who stole it.” Id. at 331, 378 P.2d at 371.

{17} As an initial matter, we note that although Bouldin specifically addressed proximate cause in its analysis, 71 N.M. at 332, 378 P.2d at 372, it also addressed the concept of duty. As discussed above, it would be an unusual ease which purely addressed duty or proximate cause. See Calkins, 110 N.M. at 61, 792 P.2d at 38 (“This case raises issues of duty and proximate cause.”). Further, tort law in New Mexico has developed a finer distinction between foreseeability as the concept relates to duty and as it relates to proximate cause, which we do not believe was as clear in earlier cases such as Bouldin. Thus, despite the nomenclature used in Bouldin, the context of the entire ease reveals that it addressed both what we now more specifically designate as duty and proximate cause. Bouldin addressed and rejected policy arguments advanced by the plaintiff:

Plaintiff argues that with the transition from the horse and buggy age to that of the highspeed car and jet airplanes, and from the period of steam and gas powered energy to that of atom propulsion, we should keep pace with the times and apply new and modern principles, better suited for our changed and changing world. We answer the argument by pointing out that we are not convinced that the rule we are urged to adopt would better serve the legal needs of this new day, and even if we were we would be most hesitant to promulgate such rules to replace doctrine long established. This would seem to be more properly for the [Legislature.

Id. at 334, 378 P.2d at 373-74. This is a classic example of a policy discussion, global and general in nature directed at a legal duty, rather than a proximate cause discussion of the specific facts of the case. See Leyba, 120 N.M. at 771, 907 P.2d at 175 (recognizing that policy determines duty); Torres, 119 N.M. at 612, 894 P.2d at 389 (same); Ruiz, 115 N.M. at 272, 850 P.2d at 975 (same). Bouldin also reviewed the plaintiffs’ appeal of a judgment which sustained the defendant’s motion to dismiss for failure to state a claim for which relief could be granted. 71 N.M. at 330, 378 P.2d at 371. “A motion to dismiss ... merely tests the legal sufficiency of the complaint and is infrequently granted because its purpose is to test the law of the claim, not the facts that support it.” Envtl. Improvement Div. of N.M. Health & Env’t Dep’t v. Aguayo, 99 N.M. 497, 499, 660 P.2d 587, 589 (1983) (emphasis added). Further, Bouldin addressed the same statute as we did above. 71 N.M. at 332, 378 P.2d at 372. Analysis of a statute in this context goes to duty, or possibly breach of duty, but not to proximate cause. See Torres, 119 N.M. at 612, 894 P.2d at 389 (concluding that, by statute, the Legislature imposed a duty upon police officers).

{18} Bouldin additionally quoted a commentator’s proposition which “suggests that the problem is not in fact one of causation, and to so treat it is to avoid the real issue .... [A] conclusion that the act complained of was not the proximate cause of the injury really means that the actor was not negligent at all or that his [or her] negligence, if any, does not cover such a risk.” 71 N.M. at 333, 378 P.2d at 373 (quoted authority and quotation marks omitted). “It is only where such misconduct was to be anticipated, and the risk of it was unreasonable, that liability will be imposed for such intervening acts.” Id. at 333-34, 378 P.2d at 373 (quoted authority and quotation marks omitted). The Court apparently accepted this reasoning, concluding, “in our view, that theft of the *52defendant’s car was not to be anticipated and that such theft and the subsequent negligent leaving of the car in the road was such a remote risk that liability should not be imposed.” Id. at 334, 378 P.2d at 373. The concept of remoteness in this context is connected to duty. As noted above, the Court then concluded its discussion by expressing an unwillingness to adopt a new rule despite the plaintiffs’ suggestion that it “should keep pace with the times and apply new and modern principles, better suited for our changed and changing world.” Id. at 334, 378 P.2d at 374. Our review of Bouldin indicates that the Court was hesitant to hold that a defendant who leaves his or her keys in an unattended car owes a duty to a plaintiff injured by the acts of a thief because, as a matter of policy, the theft and subsequent accident are too remote a risk. “The question is essentially one of the scope of the defendant’s obligation, and far removed from causation.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, at 305 (5th ed.1984). In other words, the question is “one of the policy as to imposing legal responsibility,” which is a matter of duty, not proximate cause. Id. § 44, at 301. Thus, we believe it is clear that Bouldin involved both duty and proximate cause and focused principally on duty. As discussed below, we conclude that we must overrule Bouldin on its holding that there is no duty in such a case and that there is no proximate cause as a matter of law between leaving ignition keys in an unattended vehicle and an accident precipitated by a thief.

(c) The Foreseeability Component of Duty

{19} As an initial step in the establishment of a common law duty, along with the required component of policy, “a potential plaintiff must be reasonably foreseeable to the defendant because of defendant’s actions.” Klopp v. Wackenhut Corp., 113 N.M. 153, 158, 824 P.2d 293, 298 (1992) (quoting Calkins, 110 N.M. at 62, 792 P.2d at 39). “If the harm was not willful, [the plaintiff] must show that the act as to [the plaintiff] had possibilities of danger so many and apparent as to entitle [the plaintiff] to be protected against the doing of it though the harm was unintended.” Palsgraf, 162 N.E. at 101. In other words, in a negligence ease, a plaintiff must demonstrate that the defendant’s act created a foreseeable zone of danger of such a magnitude that the defendant owes a duty to the plaintiff to refrain from engaging in the act. Calkins, 110 N.M. at 61, 792 P.2d at 38.

{20} New Mexico has adopted and applied for decades the majority view of Palsgraf, that a negligent actor only owes a duty to those whose injuries are a foreseeable result of the negligence, rather than the dissenting Palsgraf view, that one owes a duty to the world, even if the plaintiff is outside of the zone of danger. Compare Solon, 113 N.M. at 569, 829 P.2d at 648 (“ ‘[N]egligenee in the air, so to speak, will not do.’ ”) (quoted authority omitted) (alteration in original), with Palsgraf, 162 N.E. at 103 (Andrews, J., dissenting) (“Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he [or she] wronged to whom harm, might reasonably be expected to result, but he [or she] also who is in fact injured, even if he [or she] be outside what would generally be thought the danger zone.”). This Court has consistently relied on the principle of foreseeability, along with policy concerns, to determine whether a defendant owed a duty to a particular plaintiff or class of plaintiffs.

A plaintiff must show that defendant’s actions constituted a wrong against [plaintiff], not merely that defendant acted beneath a required' standard of care and that plaintiff was injured thereby. [Plaintiff] must show that a relationship existed by which defendant was legally obliged to protect the interest of plaintiff. This concept limits liability for negligent conduct — a potential plaintiff must be reasonably foreseeable to the defendant because of defendant’s actions.

Calkins, 110 N.M. at 62, 792 P.2d at 39. Foreseeability is a critical and essential component of New Mexico’s duty analysis because “no one is bound to guard against or take measures to avert that which he [or she] would not reasonably anticipate as likely to *53happen.” Bogart v. Hester, 66 N.M. 311, 316, 347 P.2d 327, 330 (1959). “[T]here can be no duty in relation to another person absent foreseeability ....” Solon, 113 N.M. at 572, 829 P.2d at 651 (Ransom, C.J., specially concurring).2

{21} The present case is complicated by the fact that Plaintiffs’ injuries were directly caused by Garcia’s criminal operation of the stolen vehicle. As Defendant notes, “[a]s a general rule, a person does not have a duty to protect another from harm caused by the criminal acts of third persons unless the person has a special relationship with the other giving rise to a duty.” Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶5, 122 N.M. 537, 928 P.2d 263; Rummel v. Edgemont Realty Partners, LTD., 116 N.M. 23, 26, 859 P.2d 491, 494 (Ct.App.1993). However, “the criminal acts of a third person will not relieve a negligent defendant of liability if the defendant should have recognized that his or her actions were likely to lead to that criminal activity.” Sarracino v. Martinez, 117 N.M. 193, 195-96, 870 P.2d 155, 157-58 (Ct.App.1994).

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his [or her] negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself [or herself] of the opportunity to commit such a tort or crime.

Id. at 195, 870 P.2d at 157 (quoted authority and emphasis omitted). Thus, the lack of a special relationship does not end our inquiry. Rather, under the facts of this ease as alleged, we find persuasive an exception to the general rule other than a special relationship: whether Defendant realized or should have realized the likelihood that leaving an ignition key in an unlocked and unattended vehicle created a situation in which a third person might avail himself or herself of the opportunity to commit criminal acts such that Defendant reasonably could be said to have created or increased a risk of harm to Plaintiffs through the criminal conduct of the thief.

{22} The present case presents a claim whereby Defendant, arguably, knew or should have known that a theft was likely to occur, and Defendant’s actions may have enhanced or increased the risk of such criminal conduct. According to Plaintiffs’ affidavit, Albuquerque has a high auto theft rate, and thieves are much more likely to steal vehicles to which they have ready access, as when the cars are left unlocked and unattended with the key in the ignition. Stolen cars are much more likely to be involved in automobile accidents. In this context, Defendant’s alleged conduct leaving the keys in the ignition of an unlocked and unattended vehicle arguably increased the likelihood that criminal acts would occur, which ultimately led to the accident in which Plaintiffs were injured, so that we impose a duty of ordinary care.

{23} In Bouldin, this Court considered the thiefs actions to be an independent intervening cause of the accident which resulted in the plaintiffs’ injuries. 71 N.M. at 333, 378 P.2d at 373. “An independent intervening cause is ‘a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could *54not have been reasonably foreseen.’ ” Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 12, 127 N.M. 729, 987 P.2d 386 (quoting Thompson v. Anderman, 59 N.M. 400, 411-12, 285 P.2d 507, 514 (1955)).3 “Independent intervening cause is a question of policy, foreseeability, and remoteness.” Torres, 1999-NMSC-029, ¶ 14, 127 N.M. 729, 987 P.2d 386. “[T]he doctrine reflects traditional notions of proximate causation and the need to limit potentially limitless liability arising from mere cause in fact.” Id. Although the doctrine is closely related to proximate cause, because independent intervening cause raises issues of policy, foreseeability, and remoteness, and purposefully functions to limit what could otherwise be boundless liability, it is more appropriately discussed in the context of duty, at least when it is applied as a matter of law, as it was in Bouldin. Braun v. New Hope Township, 646 N.W.2d 737, 740 (S.D.2002) (“The intervening/superceding cause analysis questions the extent of the obligation, or duty, of the original actor who was negligent. Although the question is often expressed in terms of ‘cause’ or ‘proximate cause,’ those terms avoid the real issue.”) (citation omitted).

{24} This Court, in Bouldin, concluded that it did “not perceive theft of a car as a natural event to be foreseen by a person who is negligent in leaving his [or her] car unattended with the key in the ignition.” 71 N.M. at 333, 378 P.2d at 373. Plaintiffs presented an affidavit in the district court which alleged a high rate of car thefts and the proposition that stolen vehicles are more likely to be involved in accidents. Thus, Plaintiffs in the present case have persuaded us that the theft of a car left unattended and unlocked with the key in the ignition is a natural event which can be foreseen by the tortfeasor, as is the subsequent accident and resulting injuries. Defendant’s acts foresee-ably created a zone of danger, which included Plaintiffs.

{25} We cannot conclude that Plaintiffs’ injuries were so unforeseeable that we must hold that Defendant did not owe Plaintiffs a duty as a matter of law. We conclude that Bouldin is no longer viable in its holding that such ensuing theft and subsequent negligent or criminal operation of the vehicle resulting in injury are not natural, foreseeable events attendant upon leaving one’s keys in an unlocked, unattended vehicle. Bouldin was based on a set of facts and assumptions that no longer reflects our current situation, and we cannot ignore the connection between stolen vehicles and car accidents. However, as discussed above, foreseeability alone does not determine duty. We next address policy matters which bear upon the existence of a duty.

(d) The Policy Component of Duty: Adoption of Comparative Fault

{26} The recognition of a legal duty is dependent upon considerations of both foreseeability and policy. In addition to our conclusion that leaving an ignition key in an unlocked and unattended vehicle creates a foreseeable zone of danger which supports a duty, we must now decide whether, as a matter of policy, we should impose a duty. We conclude that a change in our law warrants the recognition of a legal duty. This Court decided Bouldin in 1963, prior to our *55adoption of comparative fault, as discussed below. The implicit fear in Bouldin may very well have been the clearly troublesome notion of holding a car owner completely responsible for the negligent or criminal actions of a third party because of joint and several liability; in other words, the defendant in Boiddin could have been liable for all of the injuries suffered by the plaintiffs, rather than in proportion to his fault. See Torres, 1999-NMSC-029, ¶ 13, 127 N.M. 729, 987 P.2d 386 (“As a natural corollary to the adoption of comparative negligence ..., the Court of Appeals subsequently abolished joint and several liability, under which, among multiple defendants, each defendant regardless of proportion of fault, had been liable for one hundred percent of a plaintiffs damages.”). However, this fear is alleviated by principles of comparative fault.

{27} In Scott v. Rizzo, 96 N.M. 682, 690, 634 P.2d 1234, 1242 (1981), this Court adopted comparative negligence in order to fairly distribute the burden of fault and “hold[ ] all parties fully responsible for their own respective acts to the degree that those acts have caused harm.” Our statute addressing several liability clearly articulates that a defendant is only liable in proportion to his or her fault.

[A]ny defendant who establishes that the fault of another is a proximate cause of a plaintiff’s injury shall be liable only for that portion of the total dollar amount awarded as damages to the plaintiff that is equal to the ratio of such defendant’s fault to the total fault attributed to all persons, including plaintiffs, defendants, and persons not party to the action.

NMSA 1978, § 41-3A-KB) (1987). We hold that New Mexico’s adoption of comparative negligence is a significant development in a principle of law that results in the analysis in Bouldin becoming a mere remnant of an abandoned doctrine. See Richardson, 107 N.M. at 701, 763 P.2d at 1166. As we observed in Torres, an overly broad use of the doctrine of independent intervening cause to limit liability, as a matter of law, based upon the disproportionate fault of a third party “is inconsistent with New Mexico’s system of pure comparative fault.” Torres, 1999-NMSC-029, ¶ 15, 127 N.M. 729, 987 P.2d 386.

{28} This Court has “rejected cases from other jurisdictions refusing to apportion fault between the negligent defendants and intentional tortfeasors under the principle that ‘[negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.’ ” Barth v. Coleman, 118 N.M. 1, 3, 878 P.2d 319, 321 (1994) (citation omitted; alteration in original). We rejected this principle “because it is inconsistent with New Mexico’s adoption of comparative fault and abolition of joint and several liability.” Id. at 4, 878 P.2d at 322. Thus, in New Mexico, “ ‘each individual tortfeasor should be held responsible only for his or her percentage of the harm.’ ” Id. (quoting Reichert v. Atler, 117 N.M. 623, 624, 875 P.2d 379, 381 (1994)).

{29} Should Plaintiffs prevail in proving their negligence claim, Defendant is only liable to Plaintiffs for the damages the jury or judge determines Defendant caused. “[0]ne defendant may not be required to pay another defendant’s share of the damages.” Ramirez, 100 N.M. at 543, 673 P.2d at 827. “The total damages suffered by a plaintiff will be apportioned between all parties in proportion to their fault.” Id. at 542, 673 P.2d at 826. Defendant is, therefore, not liable for the percentage of fault attributable to Garcia, any other tortfeasors, or any comparative fault on the part of Plaintiffs which may have contributed to the accident. See Barth, 118 N.M. at 4, 878 P.2d at 322. Thus, the district court shall instruct the jury regarding several liability, and, if applicable, comparative negligence. See UJI 13-2219 NMRA 2003. We believe that the analysis in Bouldin has become an anachronism in light of the apportionment of liability based on the percentage of fault in our current system of tort law.

{30} Defendant argues that factors used by other courts to determine the existence of a duty weigh against finding such a duty in this case. These factors address issues of foreseeability as well as policy. The factors include the foreseeability of harm, the certainty of injury from the wrongful act, the closeness of the connection between the *56wrongful acts and the plaintiffs injuries, the moral blameworthiness of the wrongful act, the policy of preventing future harm, the burden on potential defendants, the consequences to the community from the imposition of a new duty, and the availability and cost of insurance against the risk of harm. However, we believe that leaving an ignition key in an unlocked and unattended vehicle foreseeably may result in its theft, and creates an unreasonable risk of harm from the thiefs operation of the vehicle. Plaintiffs presented statistical data which indicates a high rate of ear theft and that vehicles which are stolen are substantially more likely to be involved in accidents than vehicles operated by an authorized driver, supporting the foreseeability of harm and the certainty of injury. We also do not believe that the burden would be unreasonable; we could not reasonably require that all conceivable security measures be taken, but we do believe that those in possession of vehicles must take care, at a minimum, not to leave them unlocked and unattended with the key in the ignition. Whether Defendant did in fact take appropriate security precautions in the present case is, as discussed below, a question concerning breach of a duty of ordinary care for the finder of fact. We believe that the relatively simple act of removing the key from the vehicle or not leaving the vehicle unattended or unlocked while the key is in the ignition is not overly burdensome and would benefit both the owner and the general public by helping to deter theft and ensuing accidents.

{31} In the present case, we have concluded that the risk of harm to the class of persons typified by Plaintiffs was not unforeseeable and that a duty of ordinary care would be consistent with contemporary notions of public policy, most importantly, comparative fault. If one leaves a vehicle unlocked and unattended with the ignition key in the vehicle, it is not unforeseeable that a thief will steal the ear, and the thief may operate the car in a negligent or criminal manner, including a high speed chase from pursuing police officers which results in injuries to bystanders. We are confident that public policy supports the imposition of a duty of care in this class of cases, especially considering the adoption of comparative fault. Defendant owes Plaintiffs a duty based upon foreseeability and public policy, and accordingly Plaintiffs should be allowed to present their claims to a jury. Our holding is not that Defendant owes an unlimited duty to the world or a duty to actually prevent the criminal actions of a third party; Defendant owes a duty of ordinary care to foreseeable plaintiffs.

{32} We hold that Defendant’s actions in directing the owner to leave the keys in the vehicle and leaving the vehicle unlocked and unattended created a duty to exercise ordinary care. Without any of these factors, the foreseeability and likelihood of theft and the risk of harm would diminish so substantially that such a claim would fail. We conclude, based upon the adoption of comparative negligence as well as the fact that there is a high rate of vehicle theft and that stolen vehicles are more likely to be involved in accidents, that an owner or one in possession of a vehicle reasonably can foresee that the vehicle might be stolen if he or she leaves it unattended, unlocked, and with keys in its ignition, and that he or she reasonably could anticipate that the thief might drive negligently and injure another, creating a duty to that injured party.

B. Other Issues

1. Breach of Duty

{33} We recognize a duty in the present case. We do not address whether Defendant breached the duty of ordinary care.

[T]he responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances. This is a factual determination or, perhaps, a mixed determination of law and fact, involving as it does the application of precepts of duty to the historical facts as found by the fact finder.

*57 Bober v. N.M. State Fair, 111 N.M. 644, 650, 808 P.2d 614, 620 (1991). The finder of fact must determine whether Defendant breached the duty of ordinary care by considering what a reasonably prudent individual would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all surrounding circumstances of the present case, including whether Defendant acted reasonably or negligently by keeping an unlocked, unattended vehicle with the keys in the ignition on a fenced, gated lot.

2. Proximate Cause

{34} Defendant argues that its actions did not proximately cause Plaintiffs’ injuries. The issue of proximate cause is also for the jury or factfinder.

A proximate cause of an injury is that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred. It need not be the only cause, nor the last nor nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.

UJI 13-305 NMRA 2003. While we agree with Defendant that there is not great closeness in the connection between Defendant’s wrongful acts and the resulting injuries, especially considering a gap in time of approximately fourteen hours and a distance of many miles, we do not believe that the connection is so tenuous that we must conclude, as a matter of law, that there is no proximate cause. We leave the fact that the accident occurred approximately fourteen hours after Garcia stole the car from Defendant’s lot and the fact that the accident took place several miles away from its property for the jury’s consideration on the issue of proximate cause. See Calkins, 110 N.M. at 65-66 & n. 6, 792 P.2d at 42-43 & n. 6. Thus, the finder of fact must determine whether Defendant’s acts, which occurred many hours prior to the accident and many miles away, were a proximate cause of Plaintiffs’ injuries.

{35} As discussed above, we conclude that Defendant, leaving the ear unlocked, unattended, and with the key in the ignition, could have reasonably foreseen Garcia’s intervening theft of the vehicle, as well as Garcia’s subsequent criminal and negligent operation of it, and that Defendant’s actions created an unreasonable risk of harm. The foreseeability of injury, plus the policy considerations discussed above, create the legal duty to Plaintiffs. Having made the necessary determination that Defendant owes Plaintiffs a duty, we cannot conclude as a matter of law based on these facts that no rational jury could find that Defendant’s actions proximately caused Plaintiffs’ injuries. This does not preclude a district court from reaching a different conclusion as a matter of law on the issue of proximate causation under a different set of facts. See Calkins, 110 N.M. at 65 n. 6, 792 P.2d at 42 n. 6 (“A court may decide questions of negligence and proximate cause, if no facts are presented that could allow a reasonable jury to find proximate cause____”).

Nothing ... stated hereinabove is intended to imply that a factfinder could not reasonably return a verdict for the car owner in this case, or that the evidence in some comparable situation might not possibly justify even a judgment for the vehicle owner as a matter of law. Determinations in this regard must necessarily depend on the entire circumstantial spectrum, such as the position of the vehicle and the nature of the locality in which the vehicle is left, the extent of access thereto, operational condition of the vehicle, its proximity to surveillance, the time of day or night the vehicle is left unattended, and the length of time (and distance) elapsing from the theft to the accident.

McClenahan v. Cooley, 806 S.W.2d 767, 776 (Tenn.1991) (alteration in original).

3. Loss of Consortium

{36} Finally, although Plaintiffs concede that Alma Rosa De Ruiz, wife to the decedent, must withdraw her wrongful death claim because she is not the decedent’s personal representative, Plaintiffs contend that she has a viable loss of consortium claim based on a successful suit by Plaintiffs. This dependent claim would not fail if Plaintiffs successfully complete their wrongful death *58action. See Romero v. Byers, 117 N.M. 422, 426, 872 P.2d 840, 844 (1994) (recognizing loss of consortium claims).

III. Conclusion

{37} We reverse the district court. We conclude that an owner or one in possession of a vehicle who leaves a key in the ignition of an unattended and unlocked car owes a duty of ordinary care to those individuals injured in an automobile accident involving the vehicle when a thief steals the car and negligently or criminally causes the accident. The jury or finder of fact must decide whether Defendant’s actions breached this duty of ordinary care and are a proximate cause and cause in fact of injuries which Plaintiffs prove.

{38} IT IS SO ORDERED.

WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, PAMELA B. MINZNER, and RICHARD C. BOSSON, Justice (specially concurring).

BOSSON, Justice

(specially concurring).

{39} I fully concur in both the reasoning and the result of Justice Serna’s majority opinion which correctly construes and applies, and perhaps extends, existing New Mexico law. I wish to raise one additional issue.

{40} New Mexico courts have been accused of using the foreseeable plaintiff “as a legal fiction for restricting or expanding liability.” Nancy Desiderio, Tort Law-Evolution of Duty in New Mexico: Torres v. State, 26 N.M. L.Rev. 585, 585 (1996). Perhaps our critics are right. Justice Montgomery came close to reexamining the Palsgraf question of whether we should continue to use foreseeable injury to a particular plaintiff as a test of legal duty. Despite concluding that “we do not perceive this case to be a good one in which to reexamine the social policy that limits a tortfeasor’s liability to the foreseeable plaintiff,” Justice Montgomery’s query lingers. Solon v. WEK Drilling Co., 113 N.M. 566, 569, 829 P.2d 645, 648 (1992).

{41} Part of the confusion lies in our dual use of the term “foreseeability.” It is used first by the judge as ascertaining whether the defendant owes a legal duty of care, and later by the jury in determining factual issues of breach and causation. Perhaps the better question for the court should be “unforeseeability;” that is, whether no reasonable jury could find the injury foreseeable with respect to the plaintiff. As Justice Ransom has repeatedly reminded us, the overarching question for any court is whether issues of sound legal and social policy trump foreseeability and preclude imposing a duty in a particular case. Id. at 572-53, 829 P.2d at 651-52 (Ransom, C.J., specially concurring); see also Torres v. State, 119 N.M. 609, 612-13, 894 P.2d 386, 389-90 (1995). Perhaps policy issues like remoteness, aided by indications of legislative intent, are the better tools for shaping duty, and we should leave the foreseeable plaintiff for the jury.

{42} UJI 13-1604 NMRA 2003 instructs: “Every person has a duty to exercise ordinary care for the safety of the person and the property of others.” (Emphasis omitted.) That sounds more like Judge Andrews’ dissent than Judge Cardozo’s majority opinion in Palsgraf. When we attempt to define legal duty in terms of a foreseeable plaintiff, it is all too tempting to use “foreseeability” as a surrogate for result-oriented conclusions. As Dean Prosser said almost fifty years ago on the difficulties inherent in defining duty in terms of the foreseeable plaintiff: “These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it.” William L. Prosser, Palsgraf Revisited, 52 Mich. L.Rev. 1-32 (1953).

{43} The modern view seems more inclined to classify the issue of the foreseeable plaintiff under proximate cause, normally for the jury to resolve. Restatement (Third) of Torts: Liability for Physical Harm § 6 cmt. f (Tentative Draft No. 2, 2002) (“Whether this requirement of a ‘foreseeable plaintiff is an aspect of the doctrine of duty or instead of the doctrine of proximate cause is a point that the Comment to § 281(b) [Restatement (Second) of Torts] does not make clear. Modern scholars tend to classify the issue of the foreseeable plaintiff under the general heading of proximate cause, as does this *59Restatement [Third] in Chapter 6.”); see also id. § 29 cmt. n (Scope of Liability).

{44} I hope we will hear more on this issue in the future as attitudes change toward Palsgraf.