Edgar v. Rio Grande Western Ry. Co.

McCARTY, C. J., after stating the facts, delivered the op inion of the court. While it is alleged in the complaint that the respondent (defendant company) failed to keep and maintain, at the switch where the accident occurred which caused-the death of the deceased, George Edgar, proper signals indicating whether the switch was opened or closed, no evidence was offered in support of this allegation; but, on the contrary, the evidence introduced with respect to the indicators, which consisted of a disk and arrow attached to the switch stand, tended to show that they in every respected fully answered the purposes for which they were intended, and that the accident was in no manner dire to their alleged imperfect condition. In fact, the evidence, as the record now stands, -shows that the switch stand and the tracks with which it was connected were in good condition and in perfect working order. We shall therefore confine our consideration of the case to the question as to whether or not the position of the switch at the time of the acciddent was due to the negligence of respondent com-panv. While it may be fairly inferred from the evidence that some person in the employ of the respondent, or some party to whom it had intrusted one of its keys to the switch, left tbe switch unlocked, yet there is á total want of evidence to support a finding that the switch was left open either by respondent or by any person who, with respondent’s consent, used the switch or carried one of the keys thereto. The only use made of the track in question on the day of the accident, after the train on which the deceased was fireman reached Park City and before it started on its return trip- to Salt Lake City, was in the switchiug operations of this particular train, during which time it passed over the switch where the' derailment took place three times; the last time being about 11 o’clock in the forenoon. On this point witness By water testified, and his testimony is not disputed“We passed that switch before [338] tbe accident on that day about three times, and everything appeared to be' all right. The rails were continuous, for the main line on each of these occasions. Before the accident we passed over the switch about llo’dock the last time, and the rails were safe for the passage of the train. There was nothing to indicate that there was anything wrong with the track.” And again he says, referring to the switch: “I did not manipulate it on that day at all. We had no occasion to use the house track on that day. . . . All our work was done over the main line.” . Counsel for appellants, in their brief, say: “It is certain that the switch was open. It is equally certain that some one was responsible for its condition.' From this evidence’ there must be one of three inferences deduced as to who was responsible for the open switch. It was either the defendant company, the deceased, or some third person. One or the other of these inferences must necessarily arise front the proven facts that the switch was unlocked and that the switch was open.” And then, by'way of argument, they say: “While it might be said that either one inference or the other might be deduced from the evidence by a reasonable person, still it seems to us that the inference that the defendant company was responsible is the more reasonable.” It will be seen that it is practically conceded that the question as to whether defendant company or some other party left the switch open is a matter of conjecture and speculation. The evidence to which we have referred, however, instead of pointing to either defendant company or to the deceased, rather tends to show that neither of them was responsible for the open switch. Therefore the allegation in the complaint that the defendant left the switch open remains wholly unproved. It was not sufficient for appellants to show that defendant company may have been guilty of this particular act of negligence. It was incumbent upon appellants to produce some substantial evidence which would at least tend to fasten the blame on defendant for the misplaced switch which caused the accident. Where as in this case, the evidence leaves the matter uncertain as to. whether the defendant or somie unknown party is responsi [339] ble for the act of negligence alleged, a recovery cannot be had. In the case of Patton v. Texas & P. R. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, Justice Brewer, speaking for the court says: “It is not sufficient for the .employee to show that the employer may have been guilty of negligence. The evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.” (2 Labatt, Mast. & Serv., 837; Fritz v. Electric Light Co., 18 Utah 493, 56 Pac. 90; Sorenson v. Menasha Paper & Pulp Co., 56 Wis. 338, 14 N. W. 446; Deserant v. Coal R. Co., 55 Pac. 290, 9 N. W. 495; Shaw v. New Tear Gold Min. Co., 77 Pac. 515, 31 Mont. 138; Dobbins v. Brown et al., 119 N. Y. 188, 23 N. E. 537.) Tbe important question, therefore, is: Was the leaving of the switch unlocked the proximate cause of the derailment of the engine in question ? We think this question must be answered in the negative. The evidence, we think, conclusively shows that the unlocked condition of the switch wa= not the proximate cause of the death of the deceased, nor did it in any manner contribute thereto'. The record shows that, before the continuity of the rails on the main line was broken by the misplacement of the switch between 11 o’clock a. m. and 3 :20 o’clock p*. m. on the day in question, the main track where it passed the switch was “absolutely safe, even if the lock were unlocked, so far as the trains, passing over it was concerned;” that “no train running over the rails could throw it out;” and that it would require an exertion equivalent to from “fifty to seventy-five pounds” to throw open the switch and thereby break the continuity of the rails on the main line. "Under these conditions it is evident that the unlocking of the switch and leaving it in that condition could not in any degree have rendered the track dangerous or unsafe for the passage of trains; for, had it not been for the subsequent and independent act by which the switch wai turned and the continuity of the nails on the main track there [340] by broken, the accident in all probability would not have happened. In other words, there was not such an unbroken connection between the leaving of the switch unlocked and the subsequent misplacement of the rails as to make it one continuous operation. And 'even if it be assumed, for the purposes of this case, that the unlocking of the switch in the first instance was a cause without which the accident would not have occurred, it was at most a remote cause; the direct and proximate cause of the accident being the subsequent misplacement of the switch. The law is well settled that an act or omission, in order to constitute negligence for which an action will lie, must directly, as its natural consequence, produce, injury to another. Cooley, in his work on Torts (2d Ed., pp1. 73-76), says: “It is not only requisite that damage actual or inferential, should be suffered, but this damage must be the legitimate sequence of the thing amiss. The maxim of the law here applicable is that in law the immediate, and not the remote, cause of any event is regarded, and in the application of it the law rejects, as not constituting the foundation -for an action, that damage which does not flow proximately from the act complained of. In other words, the law always refers the injury to the proximate, not the remote cause. The explanation of this maxim may be given thus: If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last proximate cause, and refuse to trace it to that which was more remote.” Continuing, the author says: “A writer on this subject has stated the rule in the following language: If the wrongs and the resulting damage are not known by common éxperience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated as cause and effect to support an action.” In the case of Insurance Co. v. Boon, 95 U. S. 130, 24 L. Ed. 395, it is said: “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.” Tn the case of Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, the court says: [341] “The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? ' Did the facts constitute a continuous succession of events, so linked together as to make a- natural whole, or was there some new and independent cause intervening between the wrong and the injury? . . . It is generally held that in order to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of the 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 attending circumstances.” (Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A., 253, 27 L. R. A., 583; Bailey on Mast. Liab. to Serv., p. 420; Cole v. German Sav. & Loan Soc., 124 Fed. 113, 59 C. C. A., 593, 63 L. R. A., 416; Claypool v. Wigmore, 71 N. E. 509, 34 Ind. App. 35; Smith v. County Court (W. Va.), 8 L. R. A. 82, and cases cited in note; Afflick v. Bates, 43 Atl. 539, 21 R. I. 281.) Applying the- law as declared by the foregoing- authorities to the facts in this case, we are clearly of the opinion that the leaving of the switch unlocked was not the proximate cause, nor was it a concurring cause, of the accident; and, aa the evidence fails to show that the defendant company displaced and left the switch open on the occasion referred to, the trial court did not err in granting defendant’s motion for a nonsuit. The judgment is affirmed, with costs. NRICK, L, concurs. STKAUP, J. I think the decisive question is insufficiency of evidence to charge the defendant with the commission of the acts of negligence alleged in the complaint, rather than the proximate or1 intervening cause of injury. On that ground I concur in the judgment of affirm'ance.