Henderson Ex Rel. Utley v. Powell

Seawell, J. Ve are unable to agree that the evidence of plaintiffs, taken in its most favorable light, affords no inference of negligence on the part of defendants. Brown v. R. R., 195 N. C., 699, 143 S. E., 536; Smith v. Coach Co., 214 N. C., 314, 199 S. E., 90. Carefully considering the defendants’ contention that they are relieved from proximate connection with plaintiffs’ injuries through the intervening negligence of McCrimmon, driver of the car in which they were guests, we have reached the conclusion that the negligence of the defendants, assuming the facts to be as presented on the record, is too directly involved in the result to be subject to that doctrine. The defendants insist that their negligence, if any there was, would not have produced the injury to the plaintiffs Avithout the negligence of McCrimmon; and therefore it stands insulated, leaving McCrimmon’s intervening negligence the sole proximate cause. The converse of this statement is universally accepted as true, and is thus expressed in a leading case: “When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless without its operation the accident would not have happened.” Ring v. City of Cohoes, 17 N. Y., 83, 90. It took the combined activities of the railroad company and McCrimmon to bring their respective vehicles into the collision *243 inflicting tbe injury. Tbe formula proposed by defendants would exonerate both of them with equal impartiality. Tbe condition suggested by defendants is found expressed in exceptional cases, usually involving primary passive negligence, not as in itself exculpatory, but as concomitant witb other conditions wbicb are tbe utter want of logical connection between tbe primary negligence and tbe injury, or tbe unforeseeability of tbe intervening act — tbat is, tbat it was wholly unpredictable tbat a disconnected negligence of a third person would take bold of tbe original negligence in tbat way and turn it into an instrument of injury. Ve have no such condition here. Crossing accidents are sui generis in tbe field of negligence, bringing into sharp focus, in one spot, tbe reciprocal duties of those seeking to use tbe intersection, nonobservance of wbicb may result in disaster. These duties are reciprocal, interrelated, and immediate; and, whatever tbe previous history of neglect, are concurrently in force and effect as soon as tbe zone of danger is created by simultaneous approach to tbe intersection. McCrimmon owed to tbe guests in bis car — and, indeed, to tbe defendants — tbe duty of due care in tbe use of tbe crossing, variously translated into details witb wbicb we are familiar. Tbe railroad company owed to McCrimmon and to these plaintiffs certain duties — amongst them prudent operation as to lookout, signals, warning, speed. Hence, it is not difficult to discern in tbe situation before us an interdependence of events; bow tbe acts of McCrimmon might be affected by tbe negligence of tbe defendants. For tbe same reason it is difficult to eliminate tbe influence of defendants’ negligence — assuming them to have been negligent — as a persisting factor in producing tbe result. No negligence is “insulated” so long as it plays a substantial and proximate part in tbe injury. Restatement of tbe Law, Torts, sec. 447. “In order to relieve tbe defendant of responsibility for tbe event, tbe intervening cause must be a superseding cause. It is a superseding cause if it so entirely supersedes tbe operation of tbe defendant’s negligence tbat it alone, without bis negligence contributing thereto in tbe slightest degree, produces tbe injury.” Shearman & Redfield on Negligence (1941), Vol. 1, p. 101, sec. 38; Gordon v. Bedard, 265 Mass., 408, 164 N. E., 374; Liberty Mutual Ins. Co. v. Great Northern Ry., 174 Minn., 466, 219 N. W., 755; Beach v. Patdon, 208 N. C., 134, 179 S. E., 446. Tbe negligence imputed to the defendants by tbe evidence is tbe operation of tbe train at an unlawful rate of speed, over an unprotected street crossing in a populous town, without signals or warning of its approach. Assuming this to be true, it was active negligence down to tbe moment of impact on tbe McCrimmon car, and proximately effective at tbat time, at least inferably so. Similarly, tbe McCrimmon car was in movement disregarding precautions and prudent operation when struck. Tbe *244 omitted acts were all relative to these movements. The default was concurrent. Ring v. City of Cohoes, supra. The legal effect of the active negligence of two independent agencies, simultaneously occurring, and inflicting injury upon a third person, is well understood. It is epitomized in Restatement of the Law, Torts, sec. 439: “If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.” As to two persons or agencies guilty of such negligence, the effect of “intervening” negligence of an independent intelligent agent, at least in a case of this kind, hinges upon the question of foreseeability. The principle is clearly and correctly stated in Butner v. Spease, 217 N. C., 82, 86, 89, 6 S. E. (2d), 808, as follows: “Nevertheless, conceding the speed of the Eutner car to be in excess of 45 miles an hour, and therefore prima facie unlawful, it is manifest that its speed would have resulted in no injury but for the ‘extraordinarily negligent’ act of the defendant Spease —in the language of the Restatement of Torts, sec. 447. . . . The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unfore-seeability on the part of the original actor of the subsequent intervening act' and resultant injury. Newell v. Darnell (209 N. C., 254, 183 S. E., 374); Beach v. Patton (208 N. C., 134, 179 S. E., 446); Hinnant v. R. R. (202 N. C., 489, 163 S. E., 555); Balcum v. Johnson, 177 N. C., 213, 98 S. E., 532. ‘The test ... is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected.’ Harton v. Tel. Co., 141 N. C., 455, 54 S. E., 299.” We cannot agree that the conduct of McCrimmon, as described in the evidence, was of such an extraordinary character as to be beyond the limits of foreseeability. We have given careful consideration to the suggestion that plaintiffs were properly nonsuited because Henderson and Rattley permitted Mc-Crimmon to approach and traverse the intersection negligently, with the windows of the car up, partly at least, interfering with the opportunity to hear, and that they gave McCrimmon no notice of a danger of which they should have been aware. We are of opinion they cannot be held for contributory negligence as a matter of law. The facts are for the jury. Smith v. R. R., 200 N. C., 177, 156 S. E., 508; Johnson v. R. R., 205 N. C., 127, 170 S. E., 120. The judgments of nonsuit are reversed. In No. 457, Reversed. In No. 459, Reversed.