Kelsey v. Rebuzzini

The plaintiff is not entitled to a judgment against the defendant unless two legal propositions are well founded, to wit: (1) that the defendant owed to him for the protection of his heifers grazing in Woodruff's pasture from the consequences to them of escape therefrom, the duty of maintaining a sufficient division fence at the point where they made their escape on to the defendant's premises; and (2) that the breach of this duty, arising from the insufficiency of the fence at the point of escape, was the proximate or legal cause of the loss which befell him through the death of his heifers.

The first of these propositions may be assumed without decision, and yet the plaintiff must fail in his action by reason of his failure to support the second.

Of a proximate cause as related to a subsequent event, we have said that it was one "which, in a natural sequence, unbroken by any new and intervening cause, produces that event, and without which that event would not have occurred. It must be an efficient act of causation separated from its effect by no other act of causation." Smith v. Connecticut Ry. Ltg. Co.,80 Conn. 268, 270, 67 A. 888; Swayne v. Connecticut Co.,86 Conn. 439, 445, 85 A. 634, 737. The acceptance of this not unusual definition, however, does not by any means close the door of debate as to what it signifies in its practical application to varying conditions. There remain, for instance, the questions as to what is meant by "natural sequence" and what by a "new and intervening cause" breaking the sequence. Fortunately the exigencies of this case do not call upon us to enter into the discussion which has been invoked by attempts to arrive at a comprehensive answer to these questions. The facts, as found, present a situation which does not lie in fairly debatable ground.

The immediate cause of the death of the plaintiff's heifers was their cropping poisoned grass upon the Cobb lot. The insufficient length of fence through which they passed to the defendant's premises did not harm them. It did not set in motion any agency of destruction which before it ceased to operate, either directly or through the interposition of some other agency set in motion by it, caused the death of the heifers. It brought about a new condition or situation rather. Smithwick v. Hall Upson Co., 59 Conn. 261, 269, 21 A. 924. This new situation was not one which exposed the cattle to new danger except as the intervention of some person's wrongful conduct might have created or might create such danger. Without such intervention they would, as far as appears, have been as safe upon the defendant's land as upon Woodruff's. Such intervention there was. Either Woodruff or Cobb or the defendant, we know not which, had failed to maintain a sufficient fence across the course of the stream where it entered upon Cobb's land. As a consequence the heifers passed upon that land. Here they would still have been exposed to no hazard, had not some one carelessly spilled poison upon the grass there. But it was there, and they were there, and they ate of it and died.

We thus have a condition of things where the defendant's original wrong in neglecting to maintain the division fence between him and Woodruff led to harmful results, solely in consequence of the intervention of the acts or omissions of other parties, unrelated to defendant's wrong save in the sequence of events producing new situations, in the final one of which the careless conduct of a new wrongdoer came into deadly operation.

The rule laid down by Cooley is that in such cases the injury will be imputed to the last wrongful act as the proximate cause, and not to that which was more remote. "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 shall be referred to the wrongful cause, passing by those which were innocent. But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote." 1 Cooley on Torts (3d Ed.) 101. This rule is doubtless too broadly stated, and needs qualification in this that the negligent action of the first party in fault will be regarded as the proximate cause whenever the negligent act or acts of the subsequent wrongdoer or wrongdoers are such as the original wrongdoer, as a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably have anticipated. "If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another. If it could not have been thus anticipated, then the intervening negligent person alone is responsible." 1 Shearman Redfield on Negligence (6th Ed.) § 34;Lane v. Atlantic Works, 111 Mass. 136.

In the present case the defendant doubtless was aware of the condition of the fence along the Cobb line, and might have anticipated the passage of cattle from his land through it. But he had no knowledge of poisoned grazing in the Cobb lot, and however experienced or sagacious he might have been, could not have anticipated that some person might aimlessly have scattered poison about upon the grass there. That incident was one so entirely out of the range of human experience that he had no occasion to take it into his calculations, and the fault involved in it as an efficient cause of the death of the heifers was so distinct, independent, and complete that the defendant's fault in not maintaining the division fence between him and Woodruff in a sufficient condition cannot be regarded as a cause of it. The defendant's failure in the maintenance of the fence did not stand to it in the relation ofcausa causans. "`Cause' and `consequence' are correlative terms. One implies the other. When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result." Monroe v. Hartford Street Ry. Co., 76 Conn. 201,207, 56 A. 498. The natural sequence of consequences flowing from the escape of the cattle from their pasture was effectually broken, and a new, distinct, and independent cause productive of their death introduced into the situation when the poisoned grazing was encountered.

There is error, the judgment is reversed and the cause remanded for the rendition of judgment for the defendant.

In this opinion the other judges concurred.