St. Louis, Iron Mountain & Southern Railway Co. v. Steel , 119 Ark. 349 ( 1915 )

Kirby, J.,

(1) (after stating the facts). It is contended that the court erred in giving each of said instructions, and especially in the giving of instruction numbered “F,” telling the jury that if it found deceased was injured and his health was thereby impaired to such an extent as to render him more susceptible to disease and less able to resist it, and it further found “that as a result of such impaired condition of his health, he contracted typhoid fever, and death resulted therefrom, that it would be warranted in finding his death was legally attributable to the injury.”

It is insisted that the railroad company could in no event be held liable in damages for the death of-deceased, unless its negligence would have produced his death without the intervention of the typhoid fever, which it is claimed was not a natural and probable consequence of the injury.

Thompson says: “A person who, in the prosecution of ia lawful act, is guilty of negligence which, combining with a subsequent circumstance of an extraordinary nature, produces an injury to a third person, will not be answerable for the damages unless his negligence would have produced the injury, had not the extraordinary circumstances supervened. The reason is that the law holds him liable for those consequences only which were the natural and probable results of his negligence, and which, therefore, ought to have been foreseen and anticipated.”

“When a new, independent cause, not under the control of the alleged wrong-doer, intervenes between the alleged wrongful -act and the injury, if such intervening cause is not a consequence of the original wrongful act, and could not have been foreseen by the exercise of ordinary care, and but for such intervening cause, the injury to the plaintiff would not have resulted, then the intervening cause will be taken to be the proximate cause of the injury, and no recovery can be had from the party who is not responsible for such independent cause.” 1 White, Per. Inj., 25.

In Railway Company v. Bragg, 69 Ark. 405, the court said:

“It is a fundamental rule of law that, to recover damages on account of the unintentional negligence of another, it must appear that the injury was the natural and probable consequences thereof, iand that it ought to have been foreseen in the light of the attending circumstances. ”

This rule was followed in St. Louis, I. M. & S. Ry. Co. v. Buckner, 89 Ark. 58; Pulaski Gas Light Co. v. McClintock, 97 Ark. 576; and Helena Gas Co. v. Rogers, 104 Ark. 59.

“The general rule is that a man is answerable for the consequences of a fault only so far as the same are natural or proximate, and as may on this account he foreseen by ordinary forecast, land not for those which arise from a conjunction of his fault with other circumstances of an extraordinary nature.” Morrison v. Davis, 20 Pa. St. 171; see, also, Milwaukee, etc., Ry. v. Kellogg, 94 U. S. 476.

For other cases holding the person, guilty of the negligence causing the injury, not liable for death thereafter resulting from some other cause, not the natural and probable consequence thereof, or of which it was not the proximate cause, see Roach v. Kelly, 194 Pa. 24; Scheffer v. Railroad Co., 105 U. S. 249; Peoples Ry. Co. v. Baldwin, 72 Atl. 979, 76 Id. 1088; Seifter v. The Brooklyn Heights Rd. Co., 169 N. Y. 254; Koch v. Zimmerman, 83 N. Y. Supp. 339, 85 App. Div. 370; Hoey v. Metropolitan St. Ry. Co. 72 N. Y. Supp. 544; Allison v. Fredericksburg, 112 Va. 243.

All human bodies are subject to weakness, disease and death, and although it was doubtless true as one of the physicians testified, that the vitality of Steel was so lowered and his system so weakened by the suffering from the injury caused him by the negligence of the railroad company, that he was more susceptible to disease and less able to resist it than he otherwise might have been, still the verdict can not be sustained unless there was some testimony from which it could be reasonably inferred that his death was occasioned by germs or disease caused by the injury or resulting from it as the natural and probable consequence thereof.

The attending physician testified that his death was caused from typhoid fever almost a year after the injury, and all the physicians stated that typhoid fever could not have Leen produced, by the injury nor as an effect arising from it, that it was never of traumatic origin. So far as the law and facts are concerned, the railroad company, through whose negligence the-jury found the injury occurred was no more responsible for his death by typhoid fever, and it was no more the natural and probable consequence of the injury than if deceased had died from having been shot with a gun while in the weakened condition caused by the injury.

His death following such a shook, that might not have resulted but for his lowered vitality and weakened condition, would have been no less proximately caused thereby than was his death by typhoid fever.

The possibility that he succumbed more readily to the disease causing death than he otherwise would but for the injury, is insufficient to support the verdict and the jury should not have been told that if death resulted from typhoid fever contracted .because of impaired health occasioned by the injury, rendering his system more liable to the disease and less able to resist it, that it was legally attributable to the injury.

The question of proximate cause is one ordinarily for the jury, to be determined as a fact from the particular situation in view of the facts iand circumstances surrounding.it. Pulaski Gas Co. v. McClintock, supra.

It is insisted that Memphis, Dallas & Gulf Rd. Co. v. Steel, 108 Ark. 14, is an authority contrary to the doctrine above announced, but such is not the case. In that case it was disclosed that the person injured was already suffering from the disease, or that the disease itself followed as a probable consequence of the injury.

Cyc. says: “An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury. .Such new force must be sufficient itself to stand as the cause of the injury * * * such intervening acts must have superseded the original act, or been itself responsible for the injury. 29 Cyc. 499-500; see also, Helena Gas Co. v. Rogers, supra.

(2) The typhoid fever was an intermediate canse disconnected from the primary or original injury and self-operating which produced the death of deceased and the negligence of the railway company causing the .injury was not the proximate cause thereof, and the court should have given appellant’s nineteenth instruction, telling the jury it was not liable for his death. This would by no means, however, prevent .a recovery of the damages occasioned by the injury to the time of the death of deceased from the intervening cause.

Instruction O tells the jury, notwithstanding it might find the deceased guilty of contributory negligence in going under the car without posting a signal flag, that if it further found from the evidence that the foreman knew of the negligence, iand was aware that deceased was in peril, and failed to exercise ordinary care to prevent the injury, it would be liable notwithstanding the contributory negligence of the deceased.

The instruction was not abstract as contended, there being some testimony tending to show that the foreman had directed the deceased to go under the oar and make the repairs and .also agreed to protect him while so doing, and 'knew he was so engaged at the time. .

(3) Instruction D should not have been given.

Unless the rule, known to the deceased, requiring the car repairers, and those going under iand working about the cars to first post the blue signal flag for their protection was abrogated by a custom established of its habitual violation with the knowledge of the master, it was erroneous, and although there is some testimony from different witnesses tending to show that they had seen people at work about the yards at Benton, and had not seen any such signal flag posted there does not appear to have been such testimony of a continued violation of the rule known to and acquiesced in by the master, as would abrogate it. St. Louis, I. M. & S. Ry. Co. v. Sharp, 115 Ark. 308, 171 S. W. 97; St. Louis, I. M. & S. Ry. Co. v. Wirbel, 108 Ark. 437, and cases cited.

The last statement of said instruction that the deceased would not be bound by .any rule of the defendant company “where the usage and practice of the defendant would tend to mislead him in the violation of the rule” was erroneous and prejudicial in iany event.

(4) If the rule was abrogated by proof of a custom of its long continued violation with the 'knowledge and acquiescence of the master, the violation of it by the deceased would not prevent a recovery for the injury, but since the rule was made for his protection and known to him, any usage and practice of the defendant tending to mislead him in the violation of it, short of its abrogation, would not relieve from the consequence of Ms negligence in violating it nor excuse him therefor.

Eor the errors pointed out, the judgment is reversed and the cause remanded for a new trial.