Setter's Admr. v. City of Maysville

Opinion of the court by JUDGE BURNAM — -Afeiemins. Elizabeth Better was run over and killed by an electric street car whilst walking along the north side of Second street, in the city of Maysville, just outside the track of the railway company, and her administrator in this suit seeks to recover damages for her death against the city of Maysville on the ground that the negligence of the city authorities was the proximate cause of her death. The alleged acts of negligence charged against the city are, in substance, thal Second street is one of the main thoroughfares of the city; that the city authorities negligently left — 67 — large piles of brick, tin cans, railroad ties, and other debris in the street between the track of th'e railway company and the north side of the street, and that they also permitted undergrowth, bushes, etc., to grow on the north side of the street, near the place of the accident, which obstructed the vision of pedestrians traveling on the north side thereof, and forced them to travel' in a narrow beaten path between said undergrowth and debris, on the one side, and the track of the Maysville Street Railway & Transfer Company, on the other, for a distance of about 300 feet; and that the city authorities permitted the railway company to maintain trolley poles along its track, and the grade to be one or two feet higher than the portion of the street on the north side, and failed to erect barricades between the street and the trolley track. After setting out the various acts of negligence relied on against the city, the petition charges “that on the ---day of -, 1900, while his intestate was passing along the north side of said street, going east from a store where she had been on business, in a direct line to Dryden’s coal office and yard, on the north side of said street, one of her objective points, she arrived at said pole, or thereabouts, and being confronted by said undergrowth, weeds, piles of stone, railroad ties:, and other debits, and said street at a lower grade than that of the railroad bed on the one side, and being confronted by the railroad track on the other, she was forced to avoid the dianger of crossing or walking on said track to travel the said narrow, beaten pathway on said s'ide, used by the public generally, between said pole and said track, and whilst between said pole and said track she was, without fault on her part, struck by a car of the Maysville Street Railway & Transfer Company; that, by reason of the gross acts of negligence aforesaid, she was knocked under the wheels of — 68 — said car, and so bruised and mangled that she died from' such injuries.'’ It is not alleged that Second street was ever graded or sidewalk coinstructed for the use of the public on the north side of said street at and along the place where the accident occurred. Substantially the only wrong charged to. appellee which contributed in any wise to the death of intestate was its failure to keep the north side of Second street free from the obstructions enumerated, which compelled plaintiff’s intestate to walk so close to the street car track that she was run over and killed thereby. The circuit judge sustained a general demurrer to the original and various amended petitions-, and the plaintiff has appealed; and the question to be determined is, conceding the alleged facts to be true, was the negligence complained of the proximate cause of the injury and death of plaintiff’s intestate? There can be no doubt that the actual and immediate cause of her death was the collision with the trolley car. But it is insisted for appellant that, as appellee was primarily negligent in the discharge of the duties imposed upon it- by law, its negligence, as well as that of the railway company, which actually inflicted the injury, must in law be considered as the proximate cause of intestate’s injury. Thompson, in his Commentaries on the Law of Negligence (section 44), says: “No negligence or other wrong of any kind whatsoever can furnish the foundation of an action for .damages unless it was the proximate cause of the injury suffered by the plaintiff; the maxim of law being ‘Causa próxima, non remota, spectator.’ Section 5. This being one of the elements essential to recovery, it follows that the burden of showing that the negligence or other wrong was the proximate cause of the injury is upon the plaintiff. The plaintiff must not — 69 — only prove negligence, but he must also prove that the negligence was the proximate cause of the injury.” And he cites by way of illustration the case where a railway company violates an ordinance limiting the speed of its trains within the limits of a city, nr runs an engine in the nighttime without a headlight, and during the period of this dereliction injury happened to various persons, which they failed to show was due to the dereliction, but to some other causes, for which the defendant was not responsible. In all these cases it was held that the plaintiff could not recover. On the other hand, it is said that, where the proximate cause and sole cause of the injury is specifically ascertained, the law will not stop to speculate on what might have occurred had such cause been absent. In 2 Shear. & R. Neg., section 26, the author says: “The breach of duty upon which an action is brought must not only be the cause; but the proximate cause, of the damage to the plaintiff. We adhere to this old form of words because, while it may not have originally meant what is now intended, it is not immovably identified with any other meaning, and is the form which has been so long in use that its rejection would make nearly all the reported cases on the question involved unintelligible. The proximate cause of an ■evenI: must be understood to be that which in the natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.” In note 3, the authors ®ay: “If it can not be said that the result would have inevitably occurred by reason of the defendant’s negligence, it can not be found that it did so occur, and the plaintiff has not made out his case.” And Wharton, in his Law of Negligence (section 134), says: “Suppose that, if it had not been for the intervention of a responsible third party, the defendant’s neg — 70 — ligence would have produced no damage to the plaintiff; is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent human action. I am negligent ón a particular subject-matter as to which I may not be contractually bound. Another person, moving independently, comes in, and, either negligently or maliciously, so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence so that I can not be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. I may be liable to him for my negligence in getting him into difficulty, but I am not liable to others' for the negligence which he alone was the cause of making operative.” And in section 999: “It has already been seen that the negligence of a third person intervening between the defendant’s negligence and the damage breaks the causal connection between the two. . . There is no road that has no imperfections, and, if a traveler is forced against one of these through the negligence of a third party, it is from the latter, and not from the town, that redress must be sought.” In Scheffer v. Railroad Co., 105 U. S., 249, 26 L. Ed., 1070, this state of case was presented: By reason of the collision of two railway trains, a passenger was injured, and in consequence became insane, and some eight months thereafter committed suicide. It was held in a suit by his personal representatives against the railway company that his own act was the proximate cause of his death, and they were not entitled to recover from the company. The court in that case, through Judge Miller, said: “In order to warrant a finding that negligence, or an act — 71 — not amounting to wanton wrong, is the proximate cause of an injury, it must o appear that the injury was the natural and probable consequence of the negligence or wrongful act, and it ought to have been foreseen in the light of attending circumstances.” In Whitt. Smith, Neg., p. 137, it is said: “If the negligence of the defendant would not have caused the injury but for the intervention •of the negligence of a third person, the defendant will not be liable.” In Cooley, Torts, section 70, the author says: “If the original wrong only becomes injurious in consequence of dhe intervention of some distinct wrongful act ■or omission of another, the injury shall be imputed to ihe last wrong, as the proximate cause, and not to that wliich was more remote:” “A. long series of judicial decisions has defined proximate or immediate and direct damages to be the ordinary and natural results of negligence such as are usual, and therefore might have been expected; and this includes in the category of remote damages such as are the result of an accidental or unusual combination of circumstances, which w'ould not reasonably be anticipated, and over which the negligent party has no control.” See Thomp. Neg., section 47. Applying these w7ell-recognized principles of law to the facts alleged by the defendant, can it be said that the condition of Second street, on the north side, at the point where the injury is alleged to have occurred, was the proximate cause of intestate’s loss of life? It is not alleged that on the south side of the railway track the road was in any wise obstructed, or that the sidewalk on that side of Second street was not in suitable condition for the use of the public. But plaintiff does allege that the collision between his intestate and the trolley car occurred during the daytime, and that the motorman in charge of the car could, — 72 — by the exercise of ordinary care, have discovered her peril in time to have avoided, striking her. If this allegation is true, plaintiff had a good cause of action against the trolley ear company. If it is not true, and she voluntarily walked upon such track, or so close thereto as to be in striking distance from a passing car, without being on the lookout for the approach of a car, she was guilty of such contributory negligence as would preclude her from recovery. And it seems to us that in no contingency was the alleged negligence of the appellee the proximate cause of her injury and death. In view of the conclusion which we have reached upon this question, it is unnecessary for us to consider the question whether a municipal corporation can be made liable for damages for mere failure on the part of the city authorities to grade and pave a suburban street. For reasons indicated, the judgment is affirmed. Petition for rehearing by appellant overruled.