A Matter of Anticipation
‘A Stone Flew From His Hand, And Another Put Out His Head From A Window …’
(Bava Kamma 33a)
Our Gemara states the opinion of R. Eliezer b.Yaakov, who notes that a person is exempt if he throws a stone that strikes and kills someone who puts out his head (from a window, directly in the path of the stone). R. Yose b. Hanina clarifies what “exempt” means: The stone thrower is exempt from galus (i.e., having to flee to a city of refuge), but he must pay for nezek (depreciation for injury caused), tza’ar (pain), rippu’i (medical treatment), sheveth (loss of livelihood), and bosheth (humiliation).
Let us compare this law with another one in this tractate (supra 26b). Rabbah states that a person is exempt if he tosses a vessel from the top of a roof and someone (even the thrower) removes mattresses and cushions that are on the ground (to absorb the shock of the fall). Why? Because the original act of throwing was not intended to cause damage. Rashi (s.v. patur) notes that both the thrower and the one who removed the cushions are exempt because of the principle that grama bi’nezikin patur – there is no liability for damage caused by indirect action.
Do They Agree Or Disagree?
The Rashba (ad loc. Novellae 33a) maintains that Rabbah would not agree with R. Eliezer b. Yaakov’s ruling regarding a stone thrower since the stone thrower alone is not responsible for the damage. Had no one stuck out his head in the path of the stone, no damage would have occurred.
Tosafos (s.v. “vehotzi ha’lah es rosho”) differs. The one who tossed the vessel, Tosafos argues, had no reason to anticipate that the cushions might be removed. Their removal is considered like damage caused by an unusual, unexpected strong wind – ruach she’einah metzuyah. A person who throws a stone in a populated area, in contrast, does have reason to anticipate that someone might walk into the path of the stone.
Rabbenu Yeshaya (cited by the Shitah Mekubbetzes, ad loc.) finds difficulty with the position of Tosafos because Rabbah stated that “even if the one who threw the vessel had, himself, removed the cushions, he is exempt when the vessel breaks upon reaching the ground.” Obviously, then, the reason the person is exempt is not because he is blameless but because each act is considered independently. Throwing the vessel is one act; removing the mattresses is another. And neither act is “complete.” The first act wouldn’t have resulted in any damage, and the second act caused damage indirectly – grama. Rabbenu Yeshaya does not deem the second act a “ruach she’einah metzuyah” because the damage is to be anticipated if the person who threw down the vessel removed the mattresses.