hence in an emergency does
not come up to the standard of what a reasonably prudent man would do
in such an emergency, as applied _ex post facto_ by twelve average men
in the jury box? If our use of "culpable" here were not, as it were,
Pickwickian, we should allow the defendant in such cases to show what
sort of man nature had made him and to call for individualization with
respect to his character and temperament as well as with respect to
the circumstances under which he acted. As the Romanist would say, we
should apply a concrete standard of _culpa_. But what the law is
really regarding is not his culpable exercise of his will but the
danger to the general security if he and his fellows act affirmatively
without coming up to the standard imposed to maintain that security.
If he acts, he must measure up to that standard at his peril of
answering for injurious consequences. Whenever a case of negligence
calls for sharp application of the objective standard, fault is as
much a dogmatic fiction as is representation in the liability of the
master for the torts of his servant. In each case the exigencies of
the will theory lead us to cover up a liability irrespective of fault,
imposed to maintain the general security, by a conclusive imputation
of fault to one who may be morally blameless. This is no less true of
cases where we speak of "negligence _per se_."

Reconciliation of common-law absolute liabilities for the getting out
of hand of things likely to escape and do damage with the doctrine of
no liability without fault has been sought by means of a fiction of
negligence, by pronouncing them disappearing historical anomalies, by
an economic interpretation that regards them as results of class
interest distorting the law, and by a theory of _res ipsa loquitur_.
Blackstone resorted to the first of these. "A man is answerable,"
he said, "for not only his own trespass but for that of his cattle
also; for if by his negligent keeping they stray upon the land of
another ... this is a trespass for which the owner must answer in
damages." But note that the negligence here is a dogmatic fiction. No
proof of negligence is required of the plaintiff, nor may the
defendant show that there was in fact no negligence. The negligence is
established by the liability, not the liability by the negligence.

In the last century it was usual to refer to absolute liability for
trespassing animals, for injuries by wild animals and for injurie