Roach v. Kelly ( 1899 )

Opinion by

Mr. Justice Dean,

Kelly, the defendant, was a licensed retail liquor dealer in the city of Pittsburg. On the afternoon of June 26,1897, between 5 and 6 o’clock, one John Roach, a man about thirty-four years of age, a puddler by trade, entered Kelly’s barroom; when there he took one or more drinks of whiskey and at the time was visibly intoxicated; as to whether he was sober and as to how many drinks he took there was contradictory evidence, but the jury has found both facts against defendant, and we assume the findings to be correct. While in the barroom he met John Atkinson with whom some time before he had quarreled, and towards whom he bore ill will. The old quarrel was renewed ; Kelly, fearing a disturbance, requested Roach to leave, which he did; he went out and stood on the pavement a very few minutes, then returned to the barroom and talked for some minutes with several acquaintances, then went out again to the pavement where he soon got into a war of words with one Pratt, the father-in-law of Atkinson; he soon left Pratt, and a short distance off met Butler, and told him, he, Roach, was going to have a fight; the two walked back to Pratt; then the three walked together along the street to the entrance of a tunnel under the Baltimore and Ohio Railroad; here they met George Wessel, and the four went through it to a vacant lot at the far end; on this lot was an open sewer excavation. Roach then took off his coat to fight Pratt, because of insulting epithets applied to him by Pratt when in front of the barroom; while fighting, Atkinson came on the ground and took part with his father-in-law, Pratt; then Butler took part with Roach, and fought against Atkinson; Roach defeated Pratt and their went to the help of Butler in his fight with Atkinson. By this time a noisy crowd had gathered; the police ran to quell the disturbance; it was shouted that the police were coming; tire fighters and the crowd ran in different directions; three of them, one being Roach, attempted to scramble up and over the steep railroad bank; Roach tried to seize the legs of one of those before him to help him in climbing, missed his catch and fell back, tumbling down the steep bank into the opening for the sewer, breaking his neck in the fall. This was 7 o’clock, or from thirty minutes to an hour after he had taken his last drink of liquor at Kelly’s. The facts, as thus narrated, were either found by the jury or are undisputed.

Roach’s widow, this plaintiff, brought suit under the act of 1854 for damages occasioned by tbe death of her husband and got a verdict for $5,000. Tbe act reads thus: “ Any person furnishing intoxicating drinks to any other person in violation of any existing law or of the provisions of this act shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and any one aggrieved may recover full damages against such person so furnishing by action on the case instituted in any court having ’ jurisdiction of such form of action in this commonwealth.” Then comes the 17th section of tlie act of 1887 as follows : “It shall not be lawful for any person with or without license to furnish by sale, gift or otherwise to any person any spirituous, vinous, malt, or brewed liquors on any day upon which elections are now or hereafter may be required to be held, nor on Sunday, nor at any time to a minor or a person of known intemperate habits, or a person visibly affected by intoxicating drink.”

If the violation of this statute by defendant was the proximate cause of tlie death of Roach it follows that Kelly is “ civilly responsible ” to the party aggrieved, Mrs. Roach.

At tbe trial defendant’s counsel requested the court to charge, that on the undisputed facts the verdict should be for defendant ; but tbe learned judge was of the opinion that it was for the jury to determine whether the unlawful sale of liquor was the proximate cause of Roach’s death. His legal conclusion is very clearly announced in this quotation from the charge: “In a case of this kind the burden of proof is on tbe plaintiff, and it must be established to tbe satisfaction of the jury that tbe death resulted from the liquor obtained at tbe defendant’s saloon; in other words, that that must be tbe direct or wbat in law is called the proximate cause of the death. If the death resulted from any other cause, any intervening cause, the selling of the liquor would not be tbe proximate cause; but there may have been several little incidents occurring or little things occurring after the sale of the liquor, and if these are also the result of the sale of the liquor, they would simply be as links in the chain of causation and be related back to the original cause.”

Of course defendant had but small chance for a verdict under this instruction, nor from this and other parts of the charge do we suppose the learned judge intended he should have much, for he seems to have- been of opinion that the proximate cause of the death was the unlawful sale of the liquor, and lie might as well have plainly said so to the jury.

There are many cases where the question of remote or proximate cause is for the jury, but this is not one of them. The facts are undisputed ; deceased had an old grudge against Atkinson ; when heated by liquor he revived the old quarrel; in gratification of his ill will he also picked a quarrel with Pratt, the father-in-law of the man he hated; they proceeded some distance to private property and fought; Roach defeated Pratt, then attacked Atkinson; while engaged in this second flagrant breach of the peace the cry of police is raised, and all, both the drunk and sober, fled; Roach, by the concurring circumstances of the slip on the bank and the fall into the open sewer, was killed. Admit that his resentment on account of the old grudge and his quarrelsomeness were prompted by the liquor and resulted in the fight; he received no injury in that consequence of defendant’s act; the direct effect of the liquor ended with the fight; in a subsequent attempt, however, to escape arrest for a violation of law he met his death; this was an intermediate cause, disconnected from the primary one, for which, under no vieAv of the facts, was defendant responsible. If Roach in his flight had been arrested by the officers, and in a scuffle to escape from them had met his death, it might as well have been argued the proximate cause of his death was the unlawful sale of liquor, yet it is too plain for argument that the resistance to the officers was the proximate and effective intervening cause, while at most the sale of liquor was the very remote cause. If we apply the rule laid down in Hoag v. R. R. Co., 85 Pa. 293, we reach the same conclusion. As is well said by Paxson, J., in that case, “ A man’s responsibility for his negligence and that of his servants must end somewhere. There is a possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reductio ad absurdum, so far as it applies to the practical affairs of life.” And then quoting R. R. Co. v. Hope, 80 Pa. 373, he adopts as the safest rule, “ that the injury must be the natural and probable consequence of the negligence — such a consequence .as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to follow from his act.” It is said in Morrison v. Davis & Co., 20 Pa. 171: “ 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 as may on this account be foreseen by ordinary forecast, and not for those which arise from a conjunction of his fault with other circumstances of an extraordinary nature. Thus, a blacksmith pricks a horse By careless shoeing; ordinary foresight might anticipate lameness and some days or weeks of unfitness for use, but it could not anticipate that by reason of the lameness the horse would be delayed in passing through a forest until a tree fell and killed him or injured his rider.” The statute on which this suit is founded imposes no higher degree of responsibility on the liquor dealer than the common law imposes upon wrongdoers. It declares he “shall be held civilly responsible for any injury to person or property in consequence ' of such furnishing.” The criminal law imposes punishment without regard to the consequences; the civil law damages only for the natural and probable consequences of the act. It might be plausibly argued that defendant ought to have so far foreseen as the natural and probable consequences of his act, that Roach might have a deadly fall on the highway when going to his home, or that his death might result from being run down by cars while crossing a railroad track, or by. falling into water and drowning, or possibly by exciting his quarrelsome disposition his death might have come from a blow inflicted by some insulted antagonist, but that he should quarrel with Pratt, proceed deliberately through a tunnel to a private lot on the opposite side of a railway, leisurely cast off his clothing, fight with Pratt and beat him, then engage with Atkinson, then, in terror of the law which he had violated, flee from the officers, slip down the steep bank he was striving to climb, fall into an open sewer hole negligently unguarded on a private lot, and thus break his neck, surely this was neither the natural nor probable consequence of giving him drink. The alleged cause is so remote from the injury that the learned judge ought to have said peremptorily that there could be no recovery.

The judgment is reversed and judgment is entered for defendant.