Harton v. . Telephone Co.

Hoke, J.

In the charge as proposed, the judge below correctly defined the negligent act alleged against defendant and properly stated that in order to answer an issue as to defendant’s negligence ‘yes,’ there must have been a negligent act, and this negligent act must have been the proximate cause of -the intestate’s death. In the last part of the charge, however, we think there was error to the prejudice of plaintiff which entitles him to a new trial. The portion of the charge referred to is as follows: “If you find from the evidence that the defendant was negligent and that as a result of this negligence the pole fell in the road, and if you further find from the evidence that one Carpenter, admitted not to be an agent of the company, raised the pole from the" ground and placed it in the hole where it had formerly been, and that thereafter the pole fell and injured plaintiff’s intestate, and that the act of Carpenter was the real cause of the injury to intestate, then the negligence of the defendant would not be the proximate cause of the injury, and you would answer the first issue Mo.’ This is predicated upon the admission of plaintiff that after Carpenter replaced the pole, sufficient time did not elapse for the defendant to discover that it had been replaced.”

The prayers for instruction on part of the plaintiff, while not entirely free from criticism, in that they may be construed as improperly putting the burden of proving the element of proximate cause involved in the first issue, on the defendant, yet they substantially embody the proposition that if defendant negligently left the pole in a dangerous and threatening position, so that it was likely to fall and injure persons passing along the highway, and the pole did fall across the highway and Carpenter, travelling along said highway, in order to clear the same and make a passway, put the pole back in the position from which it had fallen and from which it later fell again and killed the intestate; and the act of Carpenter, with the resultant injury, was one which defendant might have reasonably foreseen as a consequence of his original negligence, in such case, the intervening act of Carpenter would not prevent the primary negligence from being the proximate cause of the resultant injury, and the jury should answer the first issue “yes.” In rejecting this principle and proposing the last portion of the charge above quoted, TIis Honor could by fair interpretation,' only have intended, and we have no doubt he did intend, to decide that notwithstanding the fact that defendant may have been negligent, if Carpenter put the pole back in an insecure position from which it was likely to fall and injure one on the highway, and it did so fall and cause the injury, this would so break the sequence of events from the original negligence as to prevent same from being the proximate cause of the injury, and would shield defendant from responsibility; and in this, as started, we think there was error. Though Carpenter was guilty of negligence in replacing the pole so that it threatened, injury and was likely to fall and did fall and kill the intestate, this would not necessarily avail to protect defendant. There may be more than one proximate canse of an injury, and it is well established that when a claimant is himself free from blame and a defendant sued is responsible for one such cause of injury to plaintiff, the action will be sustained though there may be other proximate causes concurring and contributing to the injury. In 21 Am. & Eng. Enc. (2 Ed.), 495, it is said: “To show that other causes concurred in producing or contributing to the result complained of is no defense to an action of negligence. There is indeed no rule better settled in this present connection than that the defendant’s negligence, in order to render him liable, need not be the sole canse of plaintiff’s injuries.” Again on p. 496 it is said: “When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one .of such causes, he is liable.”

In Phillips v. Railroad, 121 N. Y., 657, it is said: “When, in an action to recover damages for injuries alleged to have been caused by defendant’s negligence, it appeared that there were two proximate causes of the injury, one the negligence of the defendant, and the other, an occurrence happening without fault on the part of the plaintiff, the latter is entitled to recover.” See also Cartersville v. Cook, 129 Ill., 152.

The question then recurs for consideration whether, notwithstanding that the act of Carpenter,' negligent or otherwise, was the proximate cause of the injury, may not the original or primary negligence have also been the proximate cause ?

There are many definitions of proximate cause given in the books all involving the same principle, differing in form, however, in order the better to elucidate and apply the principle to the variant facts of particular cases. That given in Shearman & Eedfield on Negligence, sec. 26, may be adopted as tbe one best suited to explain tbe ruling on tbe facts of tbe case before us. “Tbe proximate cause of tbe event/’ says tbe author, “must be understood to be that wbicb in natural and continuous sequence, unbroken by any new and independent cause, produces that event, and without wbicb such event would not have occurred. Proximity in point of time or space, however, is no part of tbe definition.” And Barrows on Negligence, p. 17, in further statement of tbe doctrine, says: “When an independent, efficient and wrongful cause intervenes between tbe original wrongful act and tbe injury ultimately suffered, tbe former, .and not tbe latter, is deemed tbe proximate cause of tbe injury.” There is no doubt here that tbe act of Carpenter intervened and whether wrongful or otherwise, that it was an efficient cause of tbe injury; but was it a new, and, more especially, was it an independent cause? For this is required before tbe sequence of events is broken, and tbe original or primary negligence becomes “insulated” and ceases to be tbe proximate cause. Speaking of this feature of tbe definition, Barrows on Neg-lgence further says: “An efficient intervening cause is a new proximate cause wbicb breaks tbe connection with tbe original cause and becomes itself solely responsible for tbe result in question. It must be an independent force, entirely super-ceding tbe oi’iginal action and rendering its effect in tbe causation remote. It is immaterial bow many new elements or forces have been introduced, if tbe, original cause remains active, tbe liability for its result is not shifted. Thus, where a horse is left unhitched in tbe street and unattended, and is maliciously frightened by a stranger -and runs away; but for tbe intervening act, be would not have run away and the injury would not have occurred, yet it was the negligence of tbe driver in the first instance wbicb made the runaway possible. This negligence has not been superceded nor obliterated, and tbe driver is responsible for tbe injuries resulting. If, however, the intervening responsible cause be of snob a nature that it, would be unreasonable to expect a prudent man to anticipate its happening, be will not be responsible for damage resulting solely from tbe intervention. Tbe intervening cause may be culpable, intentional or merely negligent.” To tbe same effect Shearman & Redfield, sec. 31 and 34, speaking further of tbe intervening cause in section 31: “In tbe first place tbe causál connection must be actually broken, tbe sequence interrupted in order to release tbe defendant from responsibility. Tbe mere fact that) another person concurs or co-operates in producing the injury or contributes thereto in any degree, whether large or small, is of no importance. * * * It is immaterial bow many 'others bad been at fault if tbe defendant’s act was tbe efficient cause of tbe injury.” And in section 34: “If tbe negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and tbe negligence of one only exposes the injured person to risk of injury in case tbe other should also be negligent, tbe liability of the person first in fault will depend upon tbe question whether tbe negligent act of tbe other was one which a man of ordinary experience and sagacity, acquainted with all tbe circumstances, could reasonably anticipate or not. If such a person could have anticipated that tbe intervening act of negligence might, in a natural and ordinary sequence, follow tbe original act of negligence, tbe person first in fault is not released from liability by reason of tbe intervening negligence of another. If it could not have been thus anticipated, then tbe intervening negligent person is alone responsible.” A like doctrine is laid down in 1 Thompson, Commentaries on tbe Law of Negligence, sections 47 to 85 inclusive, giving various instances of its application.

It will be seen that the test laid down by all of these writers, by which to determne whether tbe intervening act of an intelligent agent which has become tbe efficient cause of an injury, shall be considered a new and independent cause, breaking the sequence of events put in motion by the original negligence of the defendant, is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected. If the intervening act was of that character, then the sequence of events put in motion by the primary wrong is not broken, and this may still be held the proximate cause of the injury. Numerous and well considered decisions by courts of the highest authority show that this is a correct statement of the doctrine. Insurance Co. v. Boon, 95 U. S., 117; Railroad v. Kellogg, 94 U. S., 469; Gas Co. v. Ins. Co., 158 Mass., 574; Lane v. Atlantic Works, 111 Mass., 136; Wright v. Railroad, 27 Ill. App., 200.

In Insurance Co. v. Boon, supra, the court says: “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the' proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster. A careful consideration of the authorities will vindicate this rule.” In Lane v. Atlantic Works, supra, Colt, J., delivering the opinion, says: “In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged, but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.” And at page 144, this opinion further declares that “It was immaterial whether the act of Horace Lane (the intervening agent) was mere negligence or a voluntary inter-meddling. It was an act which the jury have found the defendants ought to have apprehended and provided against.”

In Clark v. Chambers, 19 Eng. Ruling Cases, 28, on facts not dissimilar to those of the ease before us, it was held that the primary negligence of the defendant was the proximate cause of the resultant injury,'as a matter of law. In that case, a defendant had partially and wrongfully obstructed a private carriage way by placing a barrier thereon armed with spikes — commonly called a chevaux de frise; some one, without authority from the defendant, removed the obstruction from the driveway and placed the same in a footpath near by, and one going along the footpath on a dark night was injured by the removed barrier. Held, as stated, that as a matter of law the original wrong was the proximate cause of the injury.

While this decision is deserving of the greatest consideration, the opinion itself suggests that there are cases which declare -the law as we now hold it, and we think it the more correct rule that, except in cases so clear that there can be no two opinions among men of fair minds, the question should be left to the jury to determine whether the intervening act and the resultant injury were such that the author of the original wrong could reasonably have expected them to occur as a result of his own negligent act, and we hold that the question on the phase of the case presented by these prayers for instructions should be submitted under a charge substantially embodying this position: that if the jury find the defendant, in breach of its duty, negligently allowed the pole to remain in a dangerous condition where it was likely to fall and injure one on the highway, and it did fall, blocking the road, and Carpenter, in order to clear a passway, replaced the pole so that it later fell and killed the intestate, and this act of Carpenter and the resultant injury were events which the defendant might reasonably have expected to occur as a result of its original negligence, in such case, the first issue should be answered “yes” with such other positions as the testimony may require.

In regard to the issue of contributory negligence, there seems to have been no testimony in the former trial of any-contributory negligence on the part of the intestate. In this connection, however, attention is called to the decision in Davis v. Railroad, 136 N. C., 115, in which it is held that if there was contributory negligence on the part of the plaintiff, who is father and next of kin of the intestate, the same would be available as a defense to the extent of his interest. If the father at the time of the occurrence was guilty of a negligent act which concurred in causing the injury, and his negligent act was of such character that a man of ordinary prudence could have reasonably expected that the injury was likely to result in consequence of his act, this would be such contributory negligence as would bar a recovery.

No opinion is expressed on the testimony, as it may not on this point have been set out with a view to present the question. There is error and a new trial is awarded.

New Trial.