Burrell Township v. Uncapher , 20 W.N.C. 321 ( 1887 )

Opinion,

Me. Justice Green :

The several assignments of error which relate to the admissibility of the plaintiff’s husband as a witness and of his declarations against her, may be considered together. The action was brought in the names of the husband and wife, but in right of the wife, and for the recovery of damages for an injury sustained by her. It was her action and she was the plaintiff. The husband was merely joined in his capacity as husband and to conform to the rides of pleading. In such circumstances when called to testify against his wife he cannot be regarded merely as a party to the record in order to make him competent as a party called for cross-examination. He is a formal and not a real party, and as the purpose of the offer was to elicit from him testimony adverse to the claim of his wife, he must be regarded as incompetent to deliver such testimony. The same is true as to declarations made by him. They could not be given in evidence against his wife. This disposes of the second, third, fourth and fifth assignments.

There was no error in admitting proof of notice to Wilcox, one of the supervisors, of the dangerous character of the road, and therefore the first assignment is not sustained.

The assignments numbered six to fourteen, both inclusive, relate to the subject of proximate cause and may be considered together. In our judgment, no question involving the distinction between proximate and remote cause arises in this case. The defendant owed a duty to the plaintiff as one of the 'public to keep a reasonably safe road at the place where this accident happened. If that was not done, the omission was an act of negligence on the part of the defendant, and if, in consequence of that negligence, an injury was sustained by the plaintiff, the defendant is responsible in damages to the plaintiff. It is no answer to this to say that some one else was also guilty of another act of negligence, in consequence of which the plaintiff’s injury was suffered. If both the defendant and other parties were derelict, the plaintiff might proceed against either, though of course only one actual recovery of damages for the same injury could be permitted. Between the two alleged acts of negligence in the present case, there is no relation of proximity or remoteness, in the sense in which the law .regards that subject, so as to postpone the liability of one, because of the liability of another, or because of the intervention of an intermediate agency. The parties who placed the engine by the road-side and thereby caused the plaintiff’s horse to frighten, might readily be held liable for their act of negligence, and it would be no answer for them to say that the unguarded roadside was the immediate cause of the injury and therefore they should not be held liable. They violated a distinct and independent duty to the public when they placed an object along the road-side which was calculated to frighten reasonably gentle horses. For this breach of that particular duty they are responsible, if injury results in any way by a fright being communicated to a passing horse. And so as to the defendant, if in consequence of a breach of duty in not properly guarding, the side or edge of a public road, an injury is sustained by a passing traveler. Whether the traveler be a foot passenger who falls over a road-side precipice in the dark, or rides on horseback or in a wagon, and the horse goes over in the dark, or in consequence of a sudden fright, is immaterial; the culpable breach of duty is the same in each event. Whether there be a special cause which induced an accelerated motion on the part of the horse, is of no consequence in considering the liability of those whose duty it is to keep the road-side reasonably safe. Their duty is irrespective of the duty of others, and for its breach they are responsible whether others are responsible for another violated duty or not. Thus in Shear. & Redf. Neg., § 401, it is said: “Asa general principle, the fact that an injury to a traveler on a highway was caused by the combined effect of the unsafe condition of the road and the negligence of a third person, is no defence to the party who is bound to keep the highway in repair.” In section 10 of the same work it is said: “ Negligence, however, may be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant’s negligence concurred with some other event (other than the plaintiff’s fault) to produce the plaintiff’s injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time.” Ibid § 46 ; “ The fact that the injury was caused by the joint negligence of the defendant and a stranger is, of course, no defence; and unless the person whose fault is relied upon by the defendant as an excuse, was subject to the direction of the plaintiff, his fault cannot properly be charged upon the latter.” And in section 403: “ The town is hable for an injury of which a defect in the highway is the proximate cause.”

It is not necessary to multiply quotations or the citation of decided cases ; the subject is too simple and too free of doubt. The immediately producing cause of the accident in the present case was the unguarded condition of the road-side at the place where the accident occurred. If that unguarded condition of the road-side was an act of negligence on the part of the defendant, it follows that the defendant is responsible. Whether it was negligence in the defendant to maintain the road at the place in question without some kind of protection,, was a question of pure fact which it was the province of the-jury alone to determine. Much testimony was given upon that subject on both sides, and the question was fairly and correctly left to the jury. The verdict in favor of the plaintiff decides the question against the defendant, and it is not possible for us to reverse that finding. We cannot say there was no evidence, or only a scintilla, to support the verdict and on no other principle can we interfere. On another trial, if it were granted, the question would have to be decided by the same tribunal, and in view of the extreme smallness of the verdict,, consequences far more disastrous to the township might easily result.

Judgment affirmed.