Sturgis v. Kountz

Opinion by

Mb. Justice Dean,

The defendant was the owner of a ferryboat, “ William Thaw,” plying between the lower part of Allegheny City and south side of the Ohio river. On the 9th of February, 1892, the plaintiff, Dr. W. W. Sturgis, a practicing physician, drove on the boat in a light two wheeled sulky, to be ferried from north to south side. The boat left the wharf, and was some distance from it in the channel, when it was passed by a small tug boat, the “ John Dippel ” which, when near to the “ William Thaw,” blew its steam whistle. This frightened the horses, of which there were a number on the ferryboat. The entrance on the boat from the landing had been closed by a wooden rail or bar to prevent frightened or unruly horses from backing vehicles off the boat, or from plunging over into the water. When frightened by the scream of the whistle, the horses commenced backing and plunging. The plaintiff was sitting in his sulky, the horse’s head in the direction of the forward part of the boat, and the rear of the sulky not far from the cross bar, which protected the entrance: in front of him was a two horse team, which backed against plaintiff’s horse; his horse then backed, turned almost around towards the outside of the boat, struck the cross bar with his shoulder, broke it, and plunged into the river with sulky and driver. The horse was drowned, the sulky lost, but the owner was rescued without sustaining any serious personal injury. He brought suit for loss of his horse and sulky against defendant, the owner of the ferryboat, averring negligence in putting up and using a defective and insufficient cross bar to protect the owners of teams in traveling on the boat. The bar had been broken and spliced to be used, temporarily, until a new one was procured. Several days before the accident, the inspector of hulls had called attention to the defective rail, and directed it should be replaced.

The jury rendered a special verdict for plaintiff, in the sum of $365 damages, subject to the opinion of the court on the question, whether the blowing of the whistle on the tug “ Dippel ” was the proximate cause of the accident in the sense that the owner of the “ Thaw ” was not responsible, even if the guard bar or rail was defective. If so, then judgment to be entered for defendant notwithstanding verdict for plaintiff.

The court, afterwards, in an opinion filed, entered judgment for the plaintiff on the verdict. From this defendant appeals.

While, as argued by appellant, the liability of a ferryman, under the facts in this case, was .not exactly as great as that of a common carrier of goods, nevertheless, having undertaken to carry the plaintiff, with his horse and vehicle, for hire, his duty was to carry safely as against defects and insufficiency of his boat or neglect on part of himself and servants. At the same time the plaintiff, the owner of the horse and sulky, assuming the care of them while on the boat, was bound to exercise ordinary watchfulness and skill to prevent loss or injury : Wyckoff v. Ferry Co., 52 N. Y. 32. And, as is said in Clark v. Ferry Co., 35 N. Y. 485: “ They (the owners of the boat) are also required to be provided with all proper and suitable guards and barriers on the boat, for the security of the property thus carried, and to prevent damage from such casualties as it would be naturally exposed to, although ordinary care is required on part of the traveler.” In this last case, as here, a horse was lost while the owner was in the vehicle; it took fright and backed against the chain which was used to close the entrance to the ferry deck; the chain broke because of a defective hook in it. The ferry company was held answerable for negligence. To the same effect are Lewis v. Smith, 107 Mass. 334; Walker v. Jackson, 10 M. & W. 161.

Therefore, in view of the verdict, the single assignment of error for our consideration is the one urged, that, even if the broken rail was defective, the proximate and controlling cause of the accident was the blowing of the tug whistle, for which defendant is not answerable, and that the court erred in not so instructing the jury.

The question of negligence of defendant, in not providing such a guard-rail as ordinary care required; the question of the alleged contributory negligence of plaintiff in not getting from his sulky and taking his horse by the head and quieting him, were both fully and impartially submitted to the jury and found against defendant.

It seems to us, under the facts, the blowing of the whistle, although the originating cause of the injury, cannot relieve the defendant from liability. The cases cited and presented so concisely by the learned counsel for appellant are unanswerable when applied to the facts in them, and even to facts as he assumes them to be in this issue, if some of the significant intermediate facts be not noticed. “ The true rule is, 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, and likely to flow from his act.” Township v. Watson, 3 Atlantic R. 869. To the same effect is Behling v. Pipe Line, 160 Pa. 359. And so all tbe cases, cited on both sides, either expressly or by implication, rule.

Was the plunging of this frightened horse against the guardrail such a consequence as 'ought to have been foreseen by the owner of a ferryboat ? The primary cause of the plunging was the blowing of the whistle; but the primary is by no means always the natural and probable cause of the particular injury. It is not, when there is a sufficient and independent cause between it and the injury. In such case resort must be had by the sufferer to the originator of the intermediate cause. As is said by Agnew, J., in Railroad Co. v. Hope, 80 Pa. 377, the question is “ was there a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent and the final result cannot be said to be the natural and probable consequence of the primary cause.” The primary, natural and probable consequence of the blowing of the whistle was the fright of the horses and their rearing and plunging; any injury they might have done to each other, or those in charge of them on the boat, would not have been attributable to the owner of the ferryboat, because that was the consequence of the primary cause, the blowing of the whistle. But what is naturally to be expected from a frightened horse on the narrow circumscribed deck of a ferryboat? Manifestly, that he will plunge off it into the water. This the ferryboat owner, to a large extent, provided against by guard-railing of sufficient strength all around the boat except at one place, the entrance; and here it was, usually, strong enough to prevent such an accident, but on this day was not. The horse plunged against the spliced and defective rail, which broke and it went over. Here was an independent intermediate cause, or omission of duty, without which, notwithstanding the primary cause, the injury would not have been suffered. And the jury, on sufficient evidence, have found defendant was negligent in maintaining a defective guard-rail at that point.

Says Appleton, C. J., in Moulton v. Sandford, 51 Me. 134: “ Ordinarily, that condition is usually termed the cause whose share in the matter is the most conspicuous and is the most immediately preceding and proximate in the event.” It does not help us much in the administration of justice to refine on the distinctions between cause and condition in bringing about results. Taking the case before us on its facts it is not essentially different from Hey v. City of Philada., 81 Pa. 44. The plaintiff was driving his horse in a park maintained by the city for the use of the public. He was on a roadway 50 feet wide which curved round the declivity very near a steam railroad, the high bank on the right of the roadway descending very abruptly to the Schuylkill river; at this side there was no barrier or railing; the horse took fright at a locomotive whistle on the railroad, plunged down the bank into the river and was drowned. This court held it was for the jury to say whether, under the circumstances, it was negligence in the city not to have erected a proper barrier at such a point. If such omission were negligence, then that condition interposed between the originating cause, the blowing of the whistle, and the event, so as to constitute the negligent omission the efficient and proximate cause of the loss. To the same effect are Alger v. Lowell, 3 Allen, 402; Norris v. Litchfield, 35 N. H. 271; Joliet v. Verley, 35 Ill. 58.

The owner of the ferryboat in this case, on whom was the duty of care according to the circumstances, ought to have foreseen such a result because it was natural and probable, and have guarded against it by a sufficiently strong rail. The fact is he did foresee it, but negligently did not guard against it. His business was to ferry persons and vehicles across a navigable river at a point where other water craft were constantly passing and repassing. When approaching each other, passing or crossing each other’s path, signaling or warning by steam whistles is the settled custom. Whether any less startling signal might, with comfort and safety, have been adopted, has not yet been determined; it is now, and has been, since the use of steam power, the recognized method of communication between steam vessels. He knew this, and could not have been ignorant of the fact that fright by a screeching whistle was a constant menace to the safety of the animals and those having them in charge on that boat. Horses will take fright at just such noises, especially in such a situation, penned up on a boat. That, when frightened, they would press against each other and the guardrails, he was bound to know, for he was bound to have such knowledge of his business as would enable him to conduct it with reasonable safety to the public, whose patronage he invited. If the blowing of a steam whistle by a passing vessel had been out of the ordinary course of things, or if it were out of the ordinary and usual habit of horses to take fright at such a sound, he would not have been expected to foresee and provide against such an accident; ordinary care would not have required precaution against extraordinary contingencies. But here, the breaking of the bar, by the pushing of a frightened horse against it, was the natural and probable consequence of putting such a defective bar there; and this was the negligence, which, under the circumstances, was the proximate cause of plaintiff’s injury.

The learned judge of the court below, in his opinion on the reserved point, has very clearly distinguished this from the cases cited and claimed to establish the blowing of the whistle as the proximate cause.

The assignments of error are overruled, the judgment affirmed.