Bava Kamma 32a — the Talmud in English

c.

And if

the

owner of the beam stood

and because of this the barrel became lodged in the beam, the owner of the beam

is liable.

d.

And if

the owner of the beam

said to the owner of the barrel, “Stand,”

because I wish to stop, and the owner of the barrel continued walking and his barrel struck the beam, the owner of the beam

is exempt,

for he warned the owner of the barrel before he stopped, and he is the one who caused his own injury. e.

If the owner

of the

barrel

was walking

first, and the owner of the beam last,

and the owner of the beam increased his pace until it struck the barrel, and

the barrel broke against the beam, he is liable.

f.

And if the owner of the barrel stood

and because of this the owner of the beam collided with the barrel and broke it, the owner of the beam

is exempt.

g.

And if

the owner of the barrel

said to the owner of

the

beam

behind him:

“Stand,”

because I wish to stop in order to rest, and the owner of the beam continued walking and collided with the barrel, the owner of the beam

is liable.

And

the law is likewise regarding two who were walking in the public domain,

one came with his lamp and the other with his flax.

Gemara:

Rabbah bar Natan asked Rav Huna: What is the law concerning one who injures his wife during marital relations?

The sides of the uncertainty are: Is it that

since he acts with permission,

they are like two who were walking with permission in the public domain and injured one another, who are exempt, and here too the injurer

is exempt?

Or perhaps,

the two who were walking in the public domain and injured one another are exempt because we hold [27b] that it is not the practice of people to look attentively at the roads, but here

he should have examined carefully

so that he would not injure her.

He said to him

Rav Huna to Rav Natan:

You have learned it,

for we learned in the Mishna that in a case where

one has permission to walk and the other has permission to walk

both are exempt, and here too the husband is exempt because he is called one acting with permission.

Rava said,

even though he is judged like one walking with permission, he is liable by

a kal va-chomer.

We find that the Torah made one who kills a person unintentionally liable to exile, such as when he entered a forest to chop wood, and the iron slipped from the ax and killed a person unintentionally.

And what

of one who kills his fellow unintentionally in a

forest, where this one entered with permission and that one entered with permission, and he became like one who entered his fellow’s domain, is liable?

This one,

one who injures his wife during marital relations,

who entered his fellow’s domain, is it not all the more so

that he is liable?

Rather

said Rava,

this

that it

teaches

in the Mishna that when

one has permission to walk and the other has permission to walk

the injurer is exempt, applies specifically

there,

since

both of them are equal:

both caused the damage equally—the owner of the beam through colliding with the barrel, and the owner of the barrel through colliding with the beam—and when the injured party assists the injurer, the injurer is exempt.

But

here,

one who causes damage during marital relations,

he performs

the

act

of the damage, and he is liable.

And the Gemara asks:

and

if

she did not

perform an act,

but it is written

concerning an adulterer and an adulteress [Leviticus 18:29]:

“And the persons who perform them shall be cut off from among their people,”

and it is explained that the woman too is judged as one who performs an act, like the man.

The Gemara answers: the Torah regarded the woman as performing an act because

both of them have pleasure

equally, and for this both are fit to be punished equally; but in truth,

he performs the act,

and the woman does not, and therefore when he causes damage the husband is judged as the sole injurer and is liable.

We learned in the Mishna:

“The owner of the beam was first, etc.”

Resh Lakish said: Two cows

that are found

in the public domain, one crouching and one walking.

The walking one is acting with permission, since it is the way of animals to walk in the public domain, while the crouching one is acting without permission, since it is not the way of animals to crouch in the public domain.

a.

If the

cow

walking kicked the crouching one, it is exempt,

because it is the way of animals, when they see an unusual act, that they too perform unusual acts. Therefore the kick of the walking cow is judged as resulting from seeing a crouching cow, and the kicking cow is exempt.

And in the language of the Gemara above [24b]: whoever acts unusually, and another comes and acts unusually against him, is exempt. b. If the

crouching one kicked the walking one, it is liable

for half-damage, as the law of a derivative of keren above [2b].

Let us say that it supports him

with regard to the statement of Reish Lakish, “If a crouching animal kicked a walking one, it is liable,” from our Mishna:

There was the owner of a beam

walking

first, and the owner of a barrel last,

and the owner of the barrel hastened in his walking and stumbled over the beam before him, and

the barrel was broken by the beam,

the owner of the beam

is exempt, but if the owner of the beam stopped

without warning the owner of the barrel, and as a result the barrel struck the beam and broke, the owner of the beam

is liable.

But here,

the stopping of the owner of the beam in the public domain is considered an unusual act, for it is not the manner of people to stop to rest, and it follows

that

the damage caused by the owner of the beam is

like

a crouching animal

kicking a walking one, and it teaches that he is liable.

And it is explained that the one who caused the damage is liable, and he may not say to the owner of the barrel: You should have walked at the side and not behind me.

The Gemara rejects:

And can you understand it? Does this require support,

and does this law require support? Surely it is obvious that the one who causes damage is liable.

Furthermore,

it is not sufficient that it does not support him,

it is not enough that the beraita does not support Reish Lakish,

but it also raises a difficulty.

For from the precision of Reish Lakish’s wording, “If a crouching animal kicked a walking one,” it follows

that the reason is that it kicked

the crouching animal is liable;

but

if it did nothing, but the walking animal stumbled over the crouching one and

was thereby injured,

the owner of the crouching animal

is exempt.

But

in the

Mishna

it is explained that if the owner of the beam stopped,

whereby

the owner of the barrel was thereby injured, for the owner of the beam did not exert force in order to damage the barrel,

and it teaches that he is liable,

not in accordance with Reish Lakish.

In order to reconcile the words of Reish Lakish with our Mishna, one must distinguish between the cases:

The Mishna,

our Mishna held the owner of the beam liable even when he did not cause the damage through his force, but through incidental damage, because the case is one

in which it blocked [

obstructed] the beam

the road [

the entire width of the road]

like a carcass [

like a discarded carcass],

so that the owner of the barrel had no possibility of avoiding colliding with the beam; therefore the owner of the beam is liable.

But if the owner of the beam stopped without blocking the road, and the owner of the barrel collided with him, the owner of the beam may say to him: You should have walked at the side and not behind me; and he is exempt.

And the reason for Reish Lakish, who said:

here

if a crouching animal kicked a walking one it is liable, but if the walking animal was injured by the crouching one it is exempt, is because the case is

for example, it crouched [

lay down]

on one side [

on one side of the road], and the crouching animal can say to the walking one:

You should have walked on the other side,

you should have walked on the other side so that you would not stumble over me.

Rather, the latter clause of the Mishna supports Reish Lakish

with regard to his first law: “If a walking animal kicked a crouching one, it is exempt,” for if one deviates and another comes and deviates against him, the latter is exempt.

For it teaches

in the latter clause:

There was the owner

of the

barrel

walking

first, and the owner of the beam last,

and the owner of the beam hastened in his walking until he stumbled over the barrel, and

the

barrel

was broken by the beam,

the owner of the beam

is liable. And if the owner of the barrel stopped,

the owner of the beam

is exempt.

But here,

when the owner of the barrel stopped and the owner of the beam collided with him,

the

owner of the beam is judged

like

a

walking

cow that

kicked a crouching one,

for the owner of the barrel deviated by stopping, and therefore the owner of the beam struck him and injured him,

and it teaches

that the owner of the beam

is exempt;

thus, whoever deviates and another comes and deviates against him is exempt.

The Gemara rejects: There is no proof from the Mishna for the words of Reish Lakish, and in truth it is possible that whoever deviates and another comes and deviates against him, the second is liable.

And as for what is written in the

Mishna

that the owner of the beam is exempt when the owner of the barrel stopped, this is because

the

owner of the beam

was walking in his ordinary manner,

walking as usual and changing nothing; it follows that the damage to the owner of the barrel was not caused by an action of the owner of the beam, but by his stopping, and therefore the owner of the beam is exempt. But

here,

in the case of two cows, one crouching and one walking, if the walking one kicks the crouching one, it becomes liable for the kick, since it has no permission to deviate. As though

it said to her,

the crouching one said to the walking one:

Although you have permission to walk over me

to pass over me when I block the road, nevertheless

you have no permission to kick me.

Mishna:

Two people who were walking in the public domain,

and they injured one another. And likewise, if

one was running

in the public domain

and one was walking,

and the runner injured the walker,

Or both were running, and they injured one another,

both are exempt.

Gemara:

The Gemara discusses: ostensibly,

the Mishna,

our Mishna, which exempts the person running from liability for the damages caused to the person walking, is

not in accordance with Isi ben Judah.

For it was taught [in the

Tosefta]:

Isi ben Judah says:

Two people who were walking in the public domain, one running and one walking, and the person walking was injured by the runner,

the runner is liable. Because he is acting unusually,

since his running in the public domain is unusual, for people do not run there, and therefore he is considered the one causing the damage.

And Isi

ben Judah concedes to the first tanna, who disagrees with him, that if he ran

on Friday afternoon at twilight, he is exempt. Because he is running with permission,

and further on the Gemara explains why it is permitted to run on Friday afternoon.

But in the Mishna no distinction was mentioned between Shabbat and the weekdays, and it implies that it is the way of people to run in the public domain also on weekdays.

Rabbi Yohanan said: The halakha is in accordance with Isi ben Judah,

that one who runs on the weekdays and causes damage is liable, while on Friday afternoon he is exempt.

And the Gemara objects:

But did Rabbi Yohanan say this,

that the halakha is in accordance with Isi?

And

did he not generally

say: The halakha follows an unattributed Mishna?

And we learned

in our Mishna, which is an unattributed Mishna:

Whether one was running and the other walking, or both of them were running, they are exempt.

Evidently, it is permitted to run also on weekdays, and if he causes damage, he is exempt. And the Gemara has already demonstrated that our Mishna is not in accordance with Isi ben Judah. If so, how did Rabbi Yohanan rule in accordance with Isi ben Judah when there is an unattributed Mishna that disagrees with him?

And the Gemara answers: In reality, our Mishna does not contradict the words of Isi ben Judah, for it is possible to explain and say that

the Mishna

is speaking of one running

on Friday afternoon at twilight,

who is exempt even according to Isi; but if he runs on weekdays, the tanna of our Mishna concedes that he is liable, like Isi.

And the Gemara explains:

From where

does it follow from the Mishna that it is speaking of one running on Friday afternoon?

From the fact that it teaches: “

One was running and the other walking,

or both of them were running, they are exempt,”

and ostensibly,

why

do I need this further statement?

Why did the tanna add the case of a runner who caused damage? For

now, when one was running and the other walking,

when the one walking did not make any deviation and the runner did deviate, and nevertheless, if the runner injured the person walking, the runner is

exempt,

then, when both of them made a deviation, such as

both of them were running

and one injured the other,

is it necessary

for the tanna to inform us that he is exempt?

?

Rather,

necessarily, the tanna of our Mishna

is saying this:

this is the division of the tanna’s words in the Mishna:

One was running and the other walking—he is exempt,

and it is as though the tanna added and said:

In what case is this statement said? On Friday afternoon at twilight,

when he is running with permission.

But on a weekday,

since there is no permission to run in the public domain, if there was

one running and the other walking,

and the runner injured the person walking, he is

liable.

And if

both of them were running, even on

weekdays

when

it is forbidden to run on them, they are

exempt,

as we learned below [48b]: if both were acting with permission, or both were acting without permission, and they injured one another, they are exempt.

Thus, the distinction between one running on Friday afternoon and one running on weekdays was mentioned in the Mishna itself, in accordance with the words of Isi ben Judah; therefore Rabbi Yohanan ruled in accordance with his words.

The Master said: And Isi concedes that on Friday afternoon at twilight he is exempt, because he is running with permission.

And the Gemara discusses:

On Friday afternoon, what “with permission”

is there?

Which running is considered running for the sake of a mitzva, so that we exempt the runner from the damages caused to the person walking?!