Lake v. Atlantic Works , 111 Mass. 136 ( 1872 )

Colt, J.

In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.

The act of a third person, intervening and contributing a condition necessary to the injurious effect oi the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.

Whether in any given case the act charged was negligent, ana whether the injury suffered was, within the relation of cause and effect, legally attributable to it, are questions for the jury. They present oftentimes difficult questions of fact, requiring practical knowledge and experience for their settlement, and where there is evidence to justify the verdict, it cannot be set aside as matter of law. The only question for the court is, whether the instructions given upon these points stated the true tests of liability.

Most of the instructions which were requested by the defendants as' to their fault, the plaintiff’s exercise of due care, and the burden of proof, were given in substance. The defendants now make only three objections:

1. The court was asked to rule that a violation of a city ordinance would not of itself alone render the defendants liable in this suit; but that negligence must be shown, and such negligence as is averred in the declaration. The jury were plainly told on this point, that the negligence charged must be proved, and that a violation of the city ordinance was not conclusive proof of it; that it was a matter of evidence to be considered with all the other evidence in the case. This was sufficiently favorable to the defendants. The city ordinance was enacted for the purpose of rendering the streets more safe and convenient for travellers. In determining whether a particular use of a street was negligent, the jury might properly consider the legitimate uses to which the streets are devoted. Wright v. Malden & Melrose Railroad Co. 4 Allen, 283.

2. The rule of law stated to the jury, as to what was necessary to make the plaintiff a participator with Horace Lane in the unlawful act of meddling with the truck or its fastenings, is not materially different from the instructions asked. The jury were first told, in substance, that if the plaintiff did no more than go across the street by Horace Lane’s invitation, and witness the transaction, he would not be a participator in the wrongful act so as to prevent a recovery; but if he actually moved the truck or its fastenings, or actively participated in the act, he could not recover. At the close of the charge, in connection with the defendants’ request on this point, which was read to them, the jury were further told that if the plaintiff went there as a joint actor, for the purpose of encouraging Horace Lane, he could not recover, but might recover if he went attracted by curiosity only and by invitation of Horace Lane. The point now made is that these instructions are limited to the purpose for which he crossed the street, and do not meet a case where the plaintiff joined in the mischief after he got there, and was standing by for the purpose of aid and encouragement, ready to help if needed. But the instructions with the defendants’ request, taken together, are not fairly open to this objection; the jury could not have been misled as to the true rule, and must have found that he was a mere spectator. Brown v. Perkins, 1 Allen, 89, 97. Miller v. Shaw, 4 Allen, 500.

3. The last instruction asked was rightly refused. Under the law as laid down by the court the jury must have found the defendants guilty of negligence in doing that from which injury might reasonably have been expected, and from which injury resulted ; that the plaintiff was in the exercise of due care; that Horace Lane’s act was not the sole, direct or culpable cause of the injury ; that he did not purposely roll the iron upon the plaintiff; and that the plaintiff was not a joint actor with him in the transaction, but only a spectator. This supports the verdict. It is immaterial whether the act of Horace Lane was mere negligence or a voluntary intermeddling. It was an act which the jury have found the defendants ought to have apprehended and provided against. McDonald v. Snelling, 14 Allen, 290, 295. Powell v. Deveney, 3 Cush. 300. Barnes v. Chapin, 4 Allen, 444. Tutein v. Hurley, 98 Mass. 211. Dixon v. Bell, 5 M. & S. 198. Mangan v. Atherton, L. R. 1 Ex. 239. Illidge v. Groodwin, 5 C. & P. 190. Burrows v. March Gas Co. L. R. 5 Ex. 67, 71. Hughes v. Macfie, 2 H. & C. 744. Exceptions overruled.