Harton v. . Telephone Co.

CONNOR and WALKER, JJ., dissenting. There was evidence tending to show that defendant had erected its poles along a highway in Rutherford County. The road hands had worked this particular part of the highway six or eight days prior to the injury, ditching close up to a pole which was rendered (457) insecure and liable to fall. A road hand notified a lineman of the defendant of its unsafe condition some days before the injury, but the *Page 364 matter was not attended to and the pole fell across the road with the lines attached, blocking the road. One Carpenter, going along the road with a wagon, in order to clear the way and enable himself to pass, with the assistance of two others, set the pole back in the hole from which it had fallen, propped it, and left it, as he thought, secure. He testified that with the pole down, vehicles could not pass; that he could not have done otherwise than put the pole back in order to clear the way; could not have pulled it to either side without breaking the wires; that he propped the pole and, when he left it, thought it was more secure than before; that soon after, the plaintiff's intestate was passing along the highway, and the pole fell and killed her. Among other instructions, the plaintiff asked the following: 3. If you should find that the defendant was negligent in leaving the pole standing in an unsafe and dangerous condition, it cannot excuse itself by showing that the pole had already fallen and was replaced by a third person a short time before the fall which injured the plaintiff's intestate, unless you should find that the falling of the pole and its replacement was an unnatural occurrence of an event which would not ordinarily be expected and anticipated by a person of ordinary prudence in the natural and ordinary course of events. 4. If you should find from the evidence that the pole was rendered insecure and dangerous to the public by the work of the road hands six or eight days previous to the time of the alleged injury; that the pole was upon a public highway; that the defendant's lineman had notice of its insecure condition, and defendant failed to make the pole (458) secure, which insecurity was dangerous to the public traveling said road, and the injury to the intestate occurred as alleged, then the defendant cannot excuse itself by showing that the pole fell across said road and was placed back in its former position by a traveler in such way as to render it liable to fall again, unless you find that the injury came about in a manner or from causes which defendant might not have reasonably foreseen. 7. If you find that the pole fell as alleged and did the injury, then the fact that it had previously fallen and had been erected by Mr. Carpenter, as he testified, cannot avail the defendant as an excuse for its negligence, unless you find that the action of Mr. Carpenter in reerecting the pole was not connected with and was not the result of the first fall of said pole. The court declined to give either of the instructions, and intimated that he would charge the jury as follows: "If you find from the evidence that the road hands left the pole insecure and in such condition that it could be reasonably foreseen that it *Page 365 would fall in the road, and that it was left in this condition such a length of time that the defendant, by the exercise of ordinary care, could have discovered its condition, or was notified of it a sufficient length of time to enable it to repair, this would constitute negligence on the part of the defendant; but negligence alone does not entitle the plaintiff to recover. There must be negligence, and this negligence must be the real or proximate cause of the injury; if after the negligence of the defendant, there is another cause over which it had no control, which intervenes and is the real cause of the injury, then the negligence of the defendant would not be proximate. 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 (459) 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 `No.' 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." Upon the refusal of his Honor to give the instruction as requested, and upon the intimation as to his intended charge, the plaintiff submitted to a nonsuit and appealed. 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 *Page 366 (460) of the defendant would not be the proximate cause of the injury, and you would answer the first `No.' 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, traveling 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, his 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 stated, we think there was (461) 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 cause 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 A. E. (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 cause of plaintiff's injuries." *Page 367 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. R. R., 127 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 the 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 and Redfield on Negligence, sec. 26, may be adopted as the one best suited to explain (462) the ruling on the fact of the cause before us. "The proximate cause of the event," says the author, "must be understood to be that which in natural and continuous sequence, unbroken by any new and independent cause, produces that event, and without which such event would not have occurred. Proximity in point of time or space, however, is no part of the definition." And Barrows on Negligence, p. 17, in further statement of the doctrine, says: "When an independent, efficient, and wrongful cause intervenes between the original wrongful act and the injury ultimately suffered, the former, and not the latter, is deemed the proximate cause of the injury." There is no doubt here that the act of Carpenter intervened and, whether wrongful or otherwise, that it was an efficient cause of the injury; but was it a new, and more especially, was it an independent cause? For this is required before the sequence of events is broken, and the original or primary negligence becomes "insulated" and ceases to be the proximate cause. Speaking of this feature of the definition, Barrows on Negligence further says: "An efficient intervening cause is a new proximate cause which breaks the connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote. It is immaterial how many new elements or forces have been introduced, if the original cause remains active, the liability for its result is not shifted. Thus, where a horse is left unhitched in the street and unattended, and is maliciously frightened by a stranger and runs *Page 368 away: but for the intervening act, he would not have run away and the injury would not have occurred; yet it was the negligence of the driver in the first instance which made the runaway possible. This negligence has not been superseded nor obliterated, and the driver is responsible for the injuries resulting. If, however, the intervening responsible (463) cause be of such a nature that it would be unreasonable to expect a prudent man to anticipate its happening, he will not be responsible for damage resulting solely from the intervention. The intervening cause may be culpable, intentional, or merely negligent." To the same effect Shearman and Redfield, secs. 31 and 34, speaking further of the intervening cause in section 31: "In the first place, the causal connection must be actually broken, the sequence interrupted, in order to release the defendant from responsibility. The mere fact that another person concurs or cooperates in producing the injury or contributes thereto in any degree, whether large or small, is of no importance. . . . It is immaterial how many others had been at fault if the defendant's act was the efficient cause of the injury." And in section 34: "If the 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 the negligence of one only exposes the injured person to risk of injury, in case the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not. 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 is alone responsible." A like doctrine is laid down in 1 Thompson Commentaries on the Law of Negligence, secs. 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 determine whether the intervening act of an intelligent agent which has become the efficient cause of an injury shall be considered a (464) 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 *Page 369 by courts of the highest authority show that this is a correct statement of the doctrine. Ins. Co. v. Boon, 95 U.S. 117; R. R. v. Kellogg,94 U.S. 469; Gas Co. v. Ins, Co., 158 Mass. 574; Lane v. AtlanticWorks, 111 Mass. 136; Wright v. R. R., 27 Ill. App. 200. In Ins. 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. AtlanticWorks, 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 (465) opinion further declares that, "It was immaterial whether the act of Horace Lane (the intervening agent) was mere negligence or a voluntary intermeddling. 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 case 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 *Page 370 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 (466) 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. R. R., 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 kind 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.