Crandall v. Consolidated Telephone, Telegraph & Electric Co.

CUNNINGHAM, J.

Appellee contends that the act of Cuber was an intervening efficient cause of the damage, and that the injury proximately resulted therefrom. The trial court also adopted this view, and so applied the rule to the admitted facts. The appellant contends that the act of Cuber in cutting the limb of the tree, causing the power wires to become severed and fall upon the telephone wires and transfer the deadly electric current thereto, was at most a concurrent negligent act with the negligence of appellee allowing its wire to remain in close proximity to the highly charged power wires without insulation or other proper guards and in maintaining the telephone instrument in the boiler-rooms without proper protection, with fuse plugs or other devices. It is admitted by the appellee for the purposes of its motion and this appeal that it was negligent in maintaining its telephone wires and instrument as alleged. With the facts and negligence admitted we are only concerned with the question of the proximate cause of the injury. The definition of proximate cause most often given is that found in Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, as follows: “The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation ? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held, that, in ord'er to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” "What a man may reasonably anticipate is important and may be decisive in determining whether an act is negligent, but it is not at all decisive in determining whether that act is the proximate cause of an injury which ensues. If a person had no reasonable grounds to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; but, if the act itself is negligent, then the person guilty of it is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not. The law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow. 29 Cyc. 498; 1 Cooley on Torts, 3d ed., 128; Christianson v. Chicago etc. Ry. Co., 67 Minn. 94, 69 N. W. 640.

The negligence of the defendant is admitted, and in the light of this admission it was an original wrongdoer in permitting its wires to remain unprotected from the highly charged overhanging wires of the canal company, and in permitting the telephone instrument to remain without fuse plugs or other safety devices. Unless the act of Cuber was an intervening efficient cause of the injury, the injury to appellant’s intestate is a consequence naturally and proximately following from the original admitted negligence of defendant. By “efficient cause” is meant the working cause, or that cause which produces effects or results. Pullman Palace Car Co. v. Laack, 143 Ill. 242, 18 L. R. A. 215, 32 N. E. 285.

It is evident that the act of Cuber would not have caused the deadly electric current to have reached the body of the deceased but for the manner in which the telephone wires and instruments were maintained by the appellee. Had due care been exercised by the appellee in protecting its telephone wires where they approach the power wires, the breaking of the power wires would not have overcharged the telephone wires. Had the telephone wires remained unprotected and the telephone instrument in the boiler-room been properly protected by fuse plugs and safety devices, and under such circumstances, Cuber caused the power wires to fall and come into contact with the telephone wires and overcharge the telephone wires no injury would have resulted to deceased. It is clear that the combined act of the defendant and Cuber produced the condition that resulted in the injury and damage. If the act of Cuber was negligent, the damage resulted from the concurrent negligence of defendant and Cuber, and the act of each may be counted on as the wrongful cause of the injury and the parties held responsible either jointly or severally for the injury. 1 Cooley on Torts, 3d ed., 121, and cases cited in note 16; Colorado Mort. & Invest. Co. v. Rees, 21 Colo. 435, 42 Pac. 42; 29 Cyc. 498-502. If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury must be referred to the wrongful cause passing by those which are innocent. 1 Cooley on Torts, 3d ed., 101, 102, and notes.

It is not charged that the act of Cuber was more culpable than careless in cutting the limb from the fig tree. If his act was negligent and his negligent act combined with the negligence of the defendant caused the injury, the defendant cannot shield himself from responsibility by pleading the wrongful act of Cuber. 29 Cyc. 497, 498. If Cuber’s act was legal, and in its performance he used reasonable care, it was innocent, and the law would pass it over, and the negligent or wrongful act of defendant must be considered the proximate cause of the resulting injury. Scott v. Sheppard, 3 Wils. 403, S. C., 2 "W. Black. 892 (Squib case). It is not claimed by the defendant that Cuber cut the limb of the tree with a malicious intention to injure the property of anyone, or for any malicious purpose. Had such fact appeared, then the resultant injury to appellant’s intestate would have been.the natural sequence of such malicious act, and the act would have been the efficient proximate cause; for the reason such malicious act could not have been anticipated by the defendant, even though it was negligent. The criminal act of a third party can never be the natural sequence in the link of circumstances leading up to an injury, but, when such act is present, it must be considered as the efficient proximate cause of the subsequent injury, and the law will not go beyond it for a proximate cause. 29 Cyc. 501, 502. The act of Cuber in cutting the limb of a fig tree for use in connection with the family wearing apparel, while in one sense a primitive act, certainly from this record was not a malicious or criminal act; and, as we have seen, before the defendant can escape liability for its negligence, it must be made to appear that Cuber’s act was a willful and intentional wrong.

It is the province of the jury ordinarily to find from the evidence what was the proximate cause of the injury, but, on demurrer, it is the duty of the court to decide that question. The manner in which the question was raised in this ease permits the court as a matter of law from the pleadings and the admitted facts to decide the proximate cause of the injury to appellant’s intestate as upon a demurrer, and, having determined that the act of Cuber was that cause, erred as a matter of law in there fixing the liability for the damage.

The other errors complained of, if errors, are such that they need not be considered in view of the fact that a new trial becomes necessary.

The case is remanded to the superior court of Maricopa county, state of Arizona, with instructions to vacate the judgment, deny the motion, reinstate the cause, and proceed therewith in accordance with law.

FRANKLIN, C. J., and ROSS, J., concur.

Application for rehearing denied.

NOTE.—As to the legal theory of causal couueetion within the doctrine of proximate cause, see note in 36 Am. St. Rep. 807.

As to liability for discharge of electricity from wire, to the injury of one not coming actually into contact, see note in Ann. Cas. 1912A, 251.

As to proximate cause, and intervening conditions, see note in 1 Ann. Cas. 230.

As to the respective functions of court and jury with respect to questions of probable cause, see note in Ann. Cas. 1913B, 351,