Commentary for Bava Kamma 64:24

ומשום דרבו מסרהב בו לצאת למיקטליה קאי כסבור יצא אי הכי אחר נמי

Raba [on his own part] raised [however] an objection: If an officer of the Court inflicted on him<span class="x" onmousemove="('comment',' On an offender sentenced to lashes. ');">¹³</span> an additional [unauthorized] stroke, from which he died, he [the officer] is liable to take refuge on his account.<span class="x" onmousemove="('comment',' The victim's. Mak. III, 14. ');">¹⁴</span> Now, does not [the offence] here committed inadvertently approach wilful carelessness?<span class="x" onmousemove="('comment',' In which case the taking of refuge is insufficient; cf. e.g. Num. XXXV, 16-21, and Deut. XIX, 11-13. ');">¹²</span> For surely he had to bear in mind that a person might sometimes die just through one [additional] stroke. Why then state, 'he is liable to take refuge on his account'? — R. Shimi of Nehardea there upon said: [The officer committed the offence as he] made a mistake in [counting] the number [of strokes]. [But] Naba tapped R. Shimi's shoe<span class="x" onmousemove="('comment',' To draw his attention. ');">¹⁵</span> and said to him: Is it he who is responsible for the counting [of the strokes]? Was it not taught: The senior judge recites [the prescribed verses],<span class="x" onmousemove="('comment',' Deut. XXVIII, 58 etc.; Ps LXXVIII, 38. ');">¹⁶</span> the second [to him] conducts the counting [of the strokes], and the third directs each stroke to be administered?<span class="x" onmousemove="('comment',' Lit., says, " smite="" him".="" mak.="" 23a.="" ');"="">¹⁷</span> — No, said R. Shimi of Nehardea; it was the judge himself who made the mistake in counting. A [further] objection was raised: If a man throws a stone into a public thoroughfare and kills [thereby a human being], he is liable to take refuge.<span class="x" onmousemove="('comment',' Ibid. II. 2. ');">¹⁸</span> Now, does not [the offence] here committed inadvertently approach wilful carelessness?<span class="x" onmousemove="('comment',' In which case the taking of refuge is insufficient; cf. e.g. Num XXXV, 16-21 and Deut. XIX, 11-13. ');">¹⁹</span> For surely he had to bear in mind that on a public thoroughfare many people were to be found, yet it states, 'he is liable to take refuge'? — R. Samuel b. Isaac said: The offender [threw the stone while he] was pulling down his wall.<span class="x" onmousemove="('comment',' Cf. Mak. 8a. ');">²⁰</span> But should he not have kept his eyes open? — He was pulling it down at night. But even at night time, should he not have kept his eyes open? — He was [in fact] pulling his wall down in the day time, [but was throwing it] towards a dunghill. [But] how are we to picture this dunghill? If many people were to be found there, is it not a case of wilful carelessness?<span class="x" onmousemove="('comment',' In which case the taking of refuge is insufficient; cf. e.g. Num XXXV, 16-21 and Deut. XIX, 11-13. ');">¹⁹</span> If [on the other hand] many were not to be found there, is it not sheer accident?<span class="x" onmousemove="('comment',' Why then be subject to the law of refuge? ');">²¹</span> — R. Papa [thereupon] said: It could [indeed] have no application unless in the case of a dunghill where it was customary for people to resort at night time, but not customary to resort during the day, though it occasionally occurred that some might come to sit there [even in the day time]. [It is therefore] not a case of wilful carelessness since it was not customary for people to resort there during the day. Nor is it sheer accident since it occasionally occurred that some people did come to sit there [even in the day time]. R. Papa in the name of Raba referred [the remark of R. Jose b. Hanina] to the commencing clause: 'If a man entered the workshop of a joiner without permission and a chip of wood flew off and struck him in the face and killed him, he is exempt.' And R. Jose b. Hanina [thereupon] remarked; He would be liable for the four [additional] items,<span class="x" onmousemove="('comment',' In the case of mere injury; cf. supra p. 133. ');">²²</span> though he is exempt from [having to take] refuge.<span class="x" onmousemove="('comment',' In the case of manslaughter. ');">²³</span> He who refers this remark to the concluding clause<span class="x" onmousemove="('comment',' Where the entrance had been made with the knowledge of the joiner. ');">²⁴</span> will, with more reason, refer it to the commencing clause,<span class="x" onmousemove="('comment',' Where the entrance had been made without any imitation. ');">²⁵</span> whereas he who refers it to the commencing clause<span class="x" onmousemove="('comment',' Where the entrance had been made without any imitation. ');">²⁵</span> maintains that, in the [case dealt with] in the concluding clause where the entrance had been made with [the] permission [of the joiner], he would be liable to take refuge.<span class="x" onmousemove="('comment',' In the case of manslaughter. ');">²³</span> But would he be liable to take refuge [in that case]?<span class="x" onmousemove="('comment',' Where the entrance had been made with the knowledge of the joiner. ');">²⁴</span> Was it not taught: If a man enters the workshop of a smith and sparks fly off and strike him in the face causing his death, he [the smith] is exempt<span class="x" onmousemove="('comment',' From having to take refuge. ');">²⁶</span> even where the entrance had been made by permission of the smith? — [In this Baraitha] here, we are dealing with an apprentice of the smith. Is an apprentice of a smith to be killed [with impunity]? — Where his master had been urging him to leave but he did not leave. But even where his master had been urging him to leave, [which he did not do,] may he be killed [with impunity]? — Where the master believed that he had already left. If so, why should not the same apply also to a stranger?

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