Responsa for Bava Kamma 63:22

כדר' חנינא דאמר ר' חנינא

But the concluding clause may [be taken to] support Resh Lakish. For it is stated, BUT IF THE CARRIER OF THE BARREL WAS IN FRONT AND THE CARRIER OF THE BEAM BEHIND, AND THE BARREL BROKE BY [COLLISION WITH] THE BEAM, HE IS LIABLE. IF, HOWEVER, THE CARRIER OF THE BARREL [SUDDENLY] STOPPED, HE IS EXEMPT. Now, surely this case resembles that of the walking cow kicking the lying cow,<span class="x" onmousemove="('comment',' In that there was contributory misconduct on the part of the plaintiff and his cow respectively. ');">¹⁸</span> and the text states exemption? — No! The Mishnah [deals with the case where the damage was done in a usual manner as] he<span class="x" onmousemove="('comment',' The carrier of the beam. ');">¹⁹</span> was passing in the ordinary way, whereas here [in the case dealt with by Resh Lakish] it may be argued for the lying cow,<span class="x" onmousemove="('comment',' Lit., 'she can say to her'. ');">²⁰</span> 'Even if you are entitled to tread upon me, you have still no right to kick me.'<span class="x" onmousemove="('comment',' It was therefore requisite that Resh Lakish should express his rejection of this plausible argument. ');">²¹</span> <b><i>MISHNAH</i></b>. IF TWO [PERSONS] WERE PASSING ONE ANOTHER ON PUBLIC GROUND, ONE [OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING, AND THEY WERE INJURED BY EACH OTHER, BOTH OF THEM ARE EXEMPT.<span class="x" onmousemove="('comment',' So long as they had no intention of injuring each other. ');">²²</span> <b><i>GEMARA</i></b>. Our Mishnah is not in accordance with Issi b. Judah. For it has been taught: Issi b. Judah maintains that the man who had been running is liable, since his conduct was unusual. Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible. R. Johanan stated that the <i>halachah</i> is in accordance with Issi b. Judah. But did R. Johanan [really] maintain this? Has R. Johanan not laid down the rule that the <i>halachah</i> is in accordance with [the ruling of] an anonymous Mishnah?<span class="x" onmousemove="('comment',' Cf. supra p. 158. ');">²³</span> Now, did we not learn&nbsp;… ONE [ OF THEM] RUNNING AND THE OTHER WALKING OR BOTH OF THEM RUNNING&nbsp;… BOTH OF THEM ARE EXEMPT? — Our Mishnah [deals with a case] of a Sabbath eve before sunset. What proof have you of that? — From the text, OR BOTH OF THEM RUNNING&nbsp;… BOTH OF THEM ARE EXEMPT; [for indeed] what need was there for this to be inserted? If in the case where one was running and the other walking there is exemption, could there be any doubt<span class="x" onmousemove="('comment',' That there should be exemption. ');">²⁴</span> where both of them were running?<span class="x" onmousemove="('comment',' Where there was contributory negligence. ');">²⁵</span> It must accordingly mean thus: 'Where one was running and the other walking there is exemption; provided, however, it was on a Sabbath eve before sunset. For if on a weekday, [in the case of] one running and the other walking there would be liability, [whereas where] both of them were running even though on a weekday they would be exempt.' The Master stated: 'Issi, however, agrees [that if it were] on a Sabbath eve before sunset there would be exemption, for running at that time is permissible.' On Sabbath eve, why is it permissible? — As [shown by] R. Hanina: for R. Hanina used to say:<span class="x" onmousemove="('comment',' Cf. Shab. 119a. ');">²⁶</span>

Teshuvot Maharam