Gilman v. Noyes , 1876 N.H. LEXIS 137 ( 1876 )

FROM COOS CIRCUIT COURT. The objection to the requests for instructions in regard to the compromise is, that they are not based upon the evidence. The evidence was to the effect that the defendant admitted his liability, and said that he would pay the damage. But there was nothing said or done by the parties from which the jury could infer an accord and satisfaction if it had been pleaded, and that defence could not be taken at all without a plea to that effect.

As to the objection that the plaintiff could not recover because the sheep were the property of Marshall, it seems enough to say that it is very well settled in this state that a bailee has sufficient interest in the property bailed to sustain an action for damage done to it.

It should have been left to the jury to determine whether the injury was one for which the defendant's fault was the proximate cause. The court rightly refused to instruct the jury that the damage was too remote, because that was a matter for the jury to determine. I am not prepared, however, to hold, that the criterion, for determining whether the plaintiff's fault was the proximate cause of the damage, is, whether the damage would or would not have happened without the defendant's fault.

This matter of remote and proximate cause has been recently a good deal discussed in the case of fires occasioned by the negligent management of locomotives. Where the fire has spread from point to point and from building to building, the question to what extent the negligence was the proximate cause has been held to be for the jury to determine. But in no one of those cases, whether the damage was held to be proximate or remote, could it have happened at all except for the negligence complained of.

I think the doctrine of the cases now is, that the question whether the damage is remote or proximate is a question of fact for the jury, and that the jury have to determine whether the damage is the natural consequence of the negligence, and such as might have been anticipated by the exercise of reasonable prudence. If the damage would not have happened without the intervention of some new cause, the operation of which could not have been reasonably anticipated, it would then be too remote. 2 Parsons on Contracts 179; State v. Manchester Lawrence Railroad,52 N.H. 552, and cases there cited; Fent v. Toledo, Peoria Warsaw Railway Co., 59 Ill. 349 — S.C. 14 Am. R. 13.

In the present case it appears that the evidence tended to show the intervention of such new cause, — viz., bears, — and it would have been for the jury to say whether it was natural and reasonable to expect that if the sheep were suffered to escape they would be destroyed in that way.

If these views are correct, the verdict must be set aside, and a new trial granted.