Judges： Fly
Filed Date： 12/14/1910
Status： Precedential
Modified Date： 11/14/2024
This is a suit for damages arising from personal injuries alleged to have been caused by the negligence of appellant It was alleged that appellee was an employé of appellant and while engaged in his work, with other appellees, in the yards of appellant, in Houston, “in the operation of a hand or push car for defendant, and while they were engaged in moving such push car from the rails of one of defendant’s tracks to another, as incidental to and as a part of its operation, one of said employes of defendant (one Gibson) did, without warning to plaintiff, so negligently conduct himself in handling the end or part of the car he was holding as to cause or to permit it to fall upon or be thrown against plaintiff’s leg and to strike the thigh thereof a few inches abové the knee with great force and violence,
The evidence showed that appellee was first hurt about September 15, 1907, whilst he and three other men were engaged in lifting a push car from the track it was on to put it on another track. While moving the car one of the men set down his comer with such violence as to jerk the corner, to which appellee was holding, out of his hands and throw it against his leg three or four inches above the knee of the right leg. He continued his work for two weeks, although he suffered some pain in his leg. About two weeks after the injury, appellee was engaged in unloading lumber out of a grading car, and his hurt leg gave way, and he “kind of dropped down.” He suffered very much from that catastrophe, and he quit work. When pay day came around about 10 or 12 days after the second hurt, appellee walked to the shops to get his money. He received his check, went downstairs, and, as he was walking across the floor to get a drink of water, he slipped on his uninjured leg and threw out the other to catch his weight, and he stated, “It went down with me sort of doubled up, twisted under me.” There was sawdust and oil on the floor that causéd him to slip.
Moody, a witness for appellee, stated the first hurt was caused by his negligently stumbling and throwing the car against ap-pellee. The bruises on appellee’s leg consisted of a small dark place on it just above the knee. He heard no complaints from appel-lee about the injury until the accident with the lumber. Dr. Neuhaus, a witness for ap-pellee, testified: “Eeferring to the blow that counsel has questioned me about and the condition of the man as I found him, the blow probably would not cause the dislocation that I found in the thigh without some other intervening cause. To have his history the way he came to me, if there is any confusion about it, the slipping probably gave rise to the fracture. The blow itself would probably not cause the injury up here without something intervening.” The injury referred to was a fracture of the thigh.
The appellee alleged that the blow on the leg by the push car was the proximate cause of all the injuries received by him, and the cause was submitted on that theory to the jury.
The facts clearly indicate that the second and third injuries, while perhaps made possible by the first injury, were the result of independent agencies disconnected with the original cause of injury, and the fact that appellee was in the employ of appellant at the time of the subsequent injuries should have no weight in considering the proximate cause; but the case must be considered just as though he had no connection at the time with the service of appellant.
In considering the question of proximate cause, we keep in view the principle that cases may arise where an injury is inflicted by an independent and disconnected agency which has supervened and brought about the result, and still the injury will be charged to the original cause. This doctrine is an old one, which has been reiterated not only in the federal courts, but in state courts. In the cases mentioned, however, the intervening cause and its probable consequences must be such as could reasonably have been anticipated from the original act of negligence. Seale v. Railway, 65 Tex. 274, 57 Am. Rep. 602; Railway v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642; Railway v. Bigham, 90 Tex. 223, 38 S. W. 162; Shippers’ Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032. As stated in the last-cited case: “The proximate cause is not necessarily the one nearest to the event, but the primary cause may be the one proximately responsible for the result, although it may operate through one or more successive instruments. If the primary cause was so linked and bound to the events succeeding it that all together they create and become one continuous whole, the one event so operating upon the other as to tie the result to the primary cause, the latter will be the proximate cause of the injury.” It will be noted that in that case, as well as the cases reviewed therein, the first negligent act was the essential force in producing the injuries, although other and independent causes co-operated with it in producing the result. In other words, the original wrongdoer had been guilty of an act of negligence from which it might have been reasonably anticipated that the injurious effects might be produced.
It is said in the case of Lane v. Atlantic Works, 111 Mass. 139, that “the test is to be found in the probable injurious consequences which were to be anticipated, not on the number of subsequent events and agencies which might arise,” or, as differently expressed by the Supreme Court of the United States in Milwaukee Railway v. Kellogg, 94 U. S. 469, 24 L. Ed. 256: “It is generally held that in order to warrant a finding that negligence, or that an act not amounting to wanton wrong, is the proximate cause of an
We start with the premise that it was negligent in Gibson to stumble .and shove the *push car against appellee, and that appellant was liable for all damages resulting from such negligence. That negligence is all that is charged against appellant. It is not claimed that the second injury was caused by any act of negligence at that time, nor is it claimed that there was any act of negligence when the third and most serious injury was inflicted by appellee slipping and falling and fracturing the hip of the injured leg. The whole negligence charged was the act of stumbling upon the part of the employé of appellant, and, in order to fix the liability for damages arising from the last two accidents, it must appear that they are so linked and bound to the original negligence as to make a natural whole, and that there was no independent intervening cause; or that the intervening cause and its probable or reasonable consequences could have been anticipated by appellant. To state the matter as a concrete proposition, if there was an intervening cause that produced the succeeding events, in order to charge appellant with negligence in relation thereto, it must have reasonably anticipated that appellee would lift heavy timbers or do some similar act, and that the leg struck just above the knee by a push ear would give way, and that he would fall and injure himself, and that aft-erwards appellee would slip on his uninjured leg and would fall and fracture the hip of the injured leg. As said in Railway v. Big-ham, herein cited: “In our opinion nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury to the person of plaintiff” by the two falls. Appel-lee did not slip on account of his right leg being injured, because he slipped on the left leg, and that slipping was an independent cause of the injury, which could not have been reasonably anticipated by appellant from the act of negligence in .handling the. push car. The cause of the slip made by the left foot was a greasy floor, which itself was entirely independent of the cause of the original injury. Appellee’s theory, however, is that, although the greasy floor caused the uninjured leg to slip, he would not have fallen if his injured leg had not failed to sustain his weight when thrown upon it. We do not, however, think the contention,' if sustained, would make the original negligence the proximate cause of the last injury.
In the case of Raymond v. City of Haverhill, 168 Mass. 382, 47 N. E. 101, the plaintiff was injured in her ankle by a defect in the highway, on June 18, 1894, and on October 9th thereafter, while endeavoring to get upon a settee in a hall, her weak ankle, injured as aforesaid, caused her to fall and sustain a fracture of the leg. The Supreme Judicial Court of Massachusetts held: “The damage received by the plaintiff from undertaking to step from the chair to the settee on October 9, 1894, when her right ankle failed to support her, and she fell, is not a direct and immediate result of the accident which happened on June 18, 1894. She was not acting from any necessity caused by her previous injury, but acting independently and voluntarily; and as a result of her voluntary conduct she was again injured. A new and independent cause intervened between the original injury she received on October 9th.” That case fits the injuries arising from the two accidents after the or? iginal one in this case and would preclude recovery for either of them.
In the case of Snow v. Railway, 185 Mass. 321, 70 N. E. 205, the wife of plaintiff had received injuries through the negligence of defendant, and as a result thereof she became subject to attacks of dizziness, and on one occasion when she got into a pantry- sink by means of a chair, to see about a leak in the water pipe above the sink, she had one of the attacks and fell to the floor and broke her wrist. The Massachusetts court held: “The breaking of the wrist certainly was not the direct result of the collision that caused, or may have caused, conditions which contributed to it, and but for whose existence it would not perhaps have happened. But it cannot be justly said, it seems to us, that the collision was the proximate cause of the broken wrist. That was due to her getting up into the pantry sink to look at the leak in the water pipe, and was the result of voluntary and independent action on her part.” So in the case at bar the second injury was the result of the voluntary and independent act of appellee in handling lumber, and the third resulted from the uninjured foot slipping on a greasy floor.
We can see no escape from the conclusion that the stroke by the push car could not have been the direct and proximate cause of the injuries received in the subsequent accidents. „ The fact that appellee was working for appellant when the second injury was inflicted does not link it with the original negligence; but the case must be decided as though appellee was lifting the timber of some one else when the second injury occurred and was walking the floor of some one else or the sidewalk in a city, when the third injury was inflicted. All of the inju-ies are traced back, and are made dependent
The acts of appellee in lifting the lumber, the slippery floor, and the slipping of the uninjured left foot, were independent causes, created ■ by the voluntary acts of appellee, which intervened and produced the results. In determining the proximate cause, the intervention of the independent act of a third person, or the voluntary independent act of the person injured, between the act of negligence of which complaint is made and the injury sustained, which act is the immediate cause of the injury, is made the test of that remoteness of cause of damage which forbids recovery. Railway v. Sweeney, 6 Tex. Civ. App. 173, 24 S. W. 947.
The judgment is reversed, and the cause remanded.