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 if a person lets a stone fly from his hand, and another happens to put out his head [from a window, directly in the path of the stone] and is struck and killed, the stone thrower is exempt.
R. Yose b. Hanina clarifies “exempt”: the stone thrower is exempt from galuth (i.e., having to flee to a city of refuge) but he is responsible for the four additional categories of reimbursement (besides nezek, depreciation) for injury caused [tza’ar (pain), rippu’i (medical treatment), sheveth (loss of livelihood) and bosheth (humiliation) – see infra 83b, Mishna], for which he would have to compensate the victim had the latter been injured and not killed. [It is obvious that R. Eliezer b. Yaakov would require compensation for nezek.
Let us compare this Gemara with a previous passage in this tractate (supra 26b). Rabbah states that if a person tosses a vessel from the top of a roof while mattresses and cushions are below (in order to absorb the shock of the fall), and meanwhile another person removed the cushions; or even if the person who threw the vessel removed the cushions himself, [the thrower] is exempt, the reason being that the act of throwing, as originally set up, was not intended to cause any 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 by indirect action.
Do They Agree or Disagree?
Rashba (ad loc. Novellae 33a) is of the opinion that Rabbah would not agree with R. Eliezer b. Yaakov in the case of our daf, since just as the one who tossed the vessel is exempt because his action alone would not have caused the breakage [due to the presence of the cushions], in our case, similarly, the one who let the stone fly should be exempt.
Tosafos (s.v. “vehotzi ha’lah es rosho”) differ, maintaining that Rabbah and R. Eliezer b. Yaakov would agree because the cases are different. The one who tossed the vessel had no reason to anticipate that the cushions might be removed. The result of their removal is considered to be like damage by an unusual, unexpected strong wind – ruach she’einah metzuyah. (Regarding a flying stone, however, it is obvious that one should anticipate the possibility that someone might enter the path of the flying object.)
Rabbeinu Yeshaya (cited by the Shitah Mekubbetzes ad loc.) finds difficulty with the position of Tosafos because Rabbah had stated in the earlier case 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.”
It is obvious that each action of the person throwing the vessel is considered independently.
According to Rabbah, he is not responsible for tossing the vessel since there were cushions on the ground. Nor is he responsible for any damage caused if he himself removes the cushions because that is only indirect damage – a grama.
Rabbeinu Yeshaya finds it difficult to classify the removal of the cushions as an unusual strong wind (ruach she’einah metzuyah). If the person throwing down the vessel has removed the cushions, the resulting damage is to be anticipated and he should be liable.
The Sin of Causing Breakage
The Chazon Ish (Responsa, Bava Kamma siman 2: s.k. 11) explains that even if the second person informed the [first person] tossing the vessel from the roof that he was going to remove the cushions, removing the cushions is not to be considered similar to an unusual wind for another reason – it is sinful to cause the breakage of another person’s vessels, and we therefore would hope that he will reconsider and refrain from removing the cushions.
