Hays v. Williams

Kirby, J., (after stating the facts). There are many alleged errors complained of in the voluminous brief of appellant which we do not find it necessary to discuss. Instruction numbered 2 is not in correct form and is open to some of the criticism directed against it by the appellant, and if it was ■ the only instruction upon the point would call for a reversal of the case. (1) A plaintiff is entitled to recover, upon making out his case by a preponderance of the testimony, and when the jury find that the issue has been established by a preponderance of the testimony, that is all that is required and it should be so instructed. In Shinn v. Tucker, 37 Ark. 589, the court said: “Civil verdicts should be given on preponderance alone 'for the party whose evidence, considered altogether, outweighs that of the other :as to the fact in issue; or against the one having the onus, if, on the whole, the weight seems balanced.” In Arkansas Midland Ry. Co. v. Cannon, 52 Ark. 523, the court said: “More appropriate words, however, and words .adapted to express the idea intended, should have been used instead of the word ‘ satisfy. ’ In order to overcome the presumption of negligence, it was not necessary for the defendant to introduce evidence sufficient to convince the jury, beyond a reasonable doubt that it had not been negligent.” “It is never necessary,” said the court in Shinn v. Tucker, 37 Ark. 589, “in a civil case that a jury should be satisfied of the truth of their verdict in the sense of resting upon it confidently.” (2) The court charged, however, in the beginning of instruction No. 4 for appellees: “If you should fail to find by a preponderance of the evidence,” etc., and in the latter half of instruction No. 8, “the burden is upon the plaintiff to establish his right to recovery and 'the extent thereof, by a preponderance of the evidence. If the evidence preponderates in favor of the plaintiff, you will find for the plaintiff. If the evidence preponderates in favor of the defendant, you will find for the defendant. If the evidence does not preponderate in favor of either the plaintiff or defendant, but equally balances between them, your verdict should be for the defendant,” and on its own motion gave instruction No. 10, already set out, beginning, “If you find from a preponderance of the testimony, ’ ’ all of which unmistakably shows that the court understood the law, and intended to tell the jury only that the plaintiff was required to establish his cause by a preponderance of the testimony and entitled to recover upon doing so. Tire instruction itself indicates this in the latter part, saying, “And although you may find by a preponderance of the evidence that the defendants were guilty of some one or all of the acts of negligence complained of, etc., ‘yet if they were not the proximate cause, ’ ’ ’ etc. The court would doubtless have caused the objectionable words “satisfy” and “fair” to be eliminated from this instruction if a specific objection had been made thereto, and, it not having been made then, it can not be availed of here. St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187. Instruction No. 9 is complained of because it told the jury that if they found the defendants guilty of the negligence complained of, before they would be justified in finding a verdict for plaintiff, ‘ ‘ they must go further and find from the evidence that there was a direct connection between such acts of negligence and the injury complained of, and such connection must be something more than one -of a series of antecedent events without which the injury would not have .happened; if subsequent to an original act of negligence, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original act of negligence is too remote and will not amount to a cause of action. ’ ’ In Pennsylvania Reduction Co. v. Horton, 87 Ark. 579, in discussing the proximate cause of the injury, the court said: “As was said by this court-in Martin v. Railway, 55 Ark. 510, later approved in James v. James, 58 Ark. 157, there must be a direct connection between the neglect of the defendant and the injury. That its connection must be something more than one of a series of antecedent events without which the injury would not have happened.” And, continuing, “It is a well settled general rule that if subsequent to the original negligent act a' new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote.” Thompson on Negligence, supplement to section 48, says: “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 altogether they create and become one continuous whole — the one event so operating upon the others iais to tie the result to the primary cause — the latter will be the proximate cause. ’ ’ (3) In Pulaski Gas & Light Co. v. McClintock, 97 Ark. 584, the court said: “The primary cause may be the proximate cause of disaster, though it may operate through successive instruments,” * * * and quoting from Milwaukee, etc., Railway v. Kellogg, 94 U. S. 476, “but it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” This instruction does not say, and of course can not mean, that the negligence was required to be a direct cause of the fire nor the one nearest in time to it, but only that it was so linked and bound to the events succeeding it, so directly connected that altogether they create and become one continuous whole, the one event so operating upon the others as to tie the result to the primary cause, maiking it appear that the injury was the natural and probable consequence of the negligence alleged. (4) Instruction No. 10 is not open to the objection made against it by plaintiff, and the word “knowingly” would doubtless have been eliminated if specific objection had been made. It was only the court’s intention to say that if the things done complained of as negligence were known to defendants or their agent, or' by the exercise of ordinary care could have been known, that they were liable. Objection should have been made to avail of the error if one had been committed. The question of the negligence of appellees in the control and possession of the office building destroyed by fire in which appellant’s loss occurred, was submitted to the jury upon instructions fairly presenting the issues and they have found in favor of appellees. We find no prejudicial error in the record, and the judgment is affirmed.