Armstrong v. Industrial Electric & Equipment Service , 97 N.M. 272 ( 1981 )

SUTIN, Judge

(specially concurring).

I concur.

The time has long since past when serious consideration should be given to the value of an instruction that defines “proximate cause.” It has been widely used in judicial opinions. For purposes of arriving at a result, scholarly judges are able to define “proximate cause,” but none can explain it. They can pierce the meaning of each of the various causes that defy the minds of the average juror. For example only, Roswell v. Davenport, 14 N.M. 91, 94, 89 P. 256 (1907), says:

Proximate cause and effect have been best defined in the much quoted case of Railway Co. v. Kellog [Kellogg], [4 Otto 469] 94 U.S. 469, 475, [24 L.Ed. 256] where it is stated: “When there is no intermediate, efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault, and self operating which produced the injury.”

All of the cases and authorities are collected in the long and conflicting majority and dissenting opinions in Pettes v. Jones, 41 N.M. 167, 66 P.2d 967 (1937). In Rix v. Town of Alamogordo, 42 N.M. 325, 333, 77 P.2d 765 (1938), where the trial court failed to find the proximate cause of the damage, the court said:

However, we think the omission of the word “proximate” in the court’s findings is not very important.

Courts have been chipping away at the use of an instruction that defines “proximate cause.” Stroud v. Tompkins, 193 Okl. 483, 145 P.2d 396 (1943); Magnolia Petroleum Co. v. Barnes, 198 Okl. 406, 179 P.2d 132 (1947); Black & White Cab Co. v. Clark, 67 Ga.App. 170, 19 S.E.2d 570 (1942); Triplett v. Lundeen, 132 Neb. 434, 272 N.W. 307 (1937); Anderson v. Byrd, 132 Neb. 588, 272 N.W. 572 (1937); Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931); Silvertson v. City of Moorhead, 119 Minn. 467, 138 N.W. 674 (1912); High v. Waterloo, C. F. & N. Ry. Co., 195 Iowa 304, 190 N.W. 331 (1922); Stadtherr v. City of Sauk Center, 180 Minn. 496, 231 N.W. 210 (1930); Williams v. Hyman-Michaels Co., 277 S.W. 593 (Mo.App.1925); Quigley v. School District No. 45J3, 251 Or. 452, 446 P.2d 177 (1968).

Black & White Cab, supra, said:

11. Ground 25 claims that the court should have explained the meaning of proximate cause. There is no duty on the court to explain or define proximate cause. [19 S.E.2d 573.]

Osborne, supra, said:

It is considered that in instructing a jury, a court is not required to make a complete statement in finished form of abstract or general principles of the law of negligence. It is doubtful whether an accurate, inclusive, exclusive, universal definition of negligence can be framed. If it were framed, no doubt it would be so abstract and refined as to be beyond the understanding of jurors.

* * * * * *

The use of the objectionable term “proximate cause” can be avoided by using the term “legal cause” or “cause” or perhaps “substantial factor” if the proper meaning be attributed to whatever term is used. [234 N.W. 379.]

Williams, supra, said:

Plaintiff’s second assignment of error has to do with the giving of instruction No. 4 for defendant. The objection lodged against this instruction is the fact that the words “direct or proximate cause,” are used therein without being defined. We think there is no merit in this contention. Such words have a commonly understood meaning, and to hold that the jury might have been misled by the use of such language without definition would be equivalent to saying that the members of the jury were lacking in ordinary intelligence. [277 S.W. 594.]

After setting out a definition of “proximate cause,” Prosser, infra, said:

There are probably few judges who would undertake to say just what this means, and fewer still who would expect it to mean anything whatever to a jury.

Prosser, Proximate Cause in California, 38 Cal.L.Rev. 369, 424 (1950). The reason nothing further is stated in this concurrence is Prosser's opening paragraph:

So MUCH has been written about proximate cause that any professor who feels an article coming on would do well to coil it and sit on it and hold his peace. Everything worth saying on the subject has been said many times, as well as a great deal more that was not worth saying. Proximate cause remains a tangle and a jungle, a palace of mirrors and a maze, and the very bewildering abundance of the literature defeats its own purpose and adds its smoke to the fog. [Id. 369.]

Extensive authorities are cited and an apology given for this extensive presentation.

“Proximate cause” is generally defined in U.J.I. 3.8 and carried over into Products Liability wherein “independent intervening cause” is added and defined. U.J.I. 14.24. It was omitted from the only instruction adopted on “comparative negligence.” U.J.I. 16.15.

It can be said with some sense of assurance that the jury would be more confused if the entire instruction had been given. Ignorance of the meaning of the law is ignorance in action. The jury could not act in a prejudicial way on the “proximate cause” instruction.

Plaintiff was not prejudiced by the instruction given.