Missouri, K. & T. Ry. Co. v. Byrne

SANBORN, Circuit Judge. 'On December 20, 1892, the assignors of Patrick J. Byrne, the defendant in error, were notified by the agent of the Missouri, Kansas & Texas Railway Company that it would furnish cars to ship their cattle the next morning, and that he should "bring his cattle in.” Thereupon he drove them in, and put them in pens, at the station of Eufaula, which the railway company had constructed and maintained to facilitate the loading, unloading, and shipment of cattle. During the night the cattle broke down two posts and a corresponding portion of the fence, and 150 of them escaped from one of the pens. Nineteen of them were killed on or near the railroad track by an engine which ran into them, 94 were recovered, and possibly 37 were lost. The defendant in error sought to recover for the cattle lost and killed, for the injury to those recovered, and for the expense of recovering them. In the complaint upon which the action was tried there were two counts, each for the recovery of the same items of damages, which amounted in the aggregate to $1,802.50. , The first count charged that these damages were inflicted by the negligence of the company in constructing and repairing its cattle pens, and the second charged that they were inflicted by the negligence of the company in running its engine upon the cattle after they had escaped from the pens, and while its engineer might have seen them upon the track, and might have prevented the collision. The court thereupon charged the jury, in effect, that, if they found.that the railway company was negligent in the construction or maintenance of its cattle pens, they might return a verdict against it for such loss of the defendant in error as was the direct, natural, and proximate effect of that negligence; that the direct, natural, or proximate effect of a given cause was that effect which persons of ordinary judgment might reasonably conclude would follow such a cause as a result thereof; that, if the killing of the 19 cattle on the railroad tracks was the direct, natural, and proximate result of the ■ negligence in maintaining the cattle pens, they should return a verdict for the cattle so killed, under the first count of the complaint; but if that killing was not the direct, natural, and proximate effect of that negligence, but was caused solely by their collision with the engine, then they could not return a verdict for the dead cattle under the first count of the complaint, but might do' so under the second [361] count, if they found tiiat the railway company failed to exercise ordinary care in running the engine and train which struck them. The jury returned a verdict under the first count of the complaint for §743, and under the second count “for 19 cattle killed by train, at §25 per head, amounting to §475.” In other words, the jury found that the killing of the 19 cattle by the engine on the railroad tracks was not the natural or .probable effect of a failure to exercise ordinary care in the construction of the cattle pens, but that its proximate cause was the collision of the engine with them. There are numerous assignments of error. Some of them are that the court refused at the close of the trial to instruct the jury to return a verdict for the plaintiff in error upon the first count of the complaint; that it refused to instruct them to return a verdict in favor of the railroad company upon the second count of the complaint; that it denied the motion of the railway company to compel the defendant in error to elect upon which count he would proceed to trial; that it permitted Grayson, who had the transaction with the agent of the company, to testify to the conversation between them which induced him to put the cattle in the pens, although the agent was dead; and that the court refused to instruct the jury that the railway company did not receive the cattle for shipment, or take possession or assume charge of them by permitting them to be placed in the pens. There was no inconsistency between the causes of action set forth in the two counts of the complaint, and the motion to compel an election was properly denied. Both causes were based on the negligence of the company, and none of the facts essential to the maintenance of either cause were inconsistent with those that were indispensable to the maintenance of the other. Great Western Coal Co. v. Chicago G. W. Ry. Co. (C. C. A.) 98 Fed. 274. There is no statute or rule of law in force in the Indian Territory which makes a party to a contract or a transaction incompetent to testify to it because the agent of the principal with whom he made or had it is dead, and there was no error in the admission of the testimony of Grayson. Rev. St. § 858; Mansf. Dig. Ark. § 2857. It is undoubtedly a sound legal proposition that a railway company which permits stock to be placed in the pens which it has prepared by the side of its tracks to facilitate loading and unloading it does not thereby receive if for shipment, or take possession or assume charge of it as a common carrier or keeper. The limit of its liability is for the exercise of ordinary care in the construction and maintenance of its pens. But we hesitate to say that this proposition was not substantially given to the jury, although not in the words of the request of the company, and perhaps not as clearly and incisively as it might have been. There is, however, one assignment of error which must be sustained, and which renders a more extended notice of others unnecessary. It is that the court refused to instruct the jury that they must return a verdict for the railway company upon the second cause of action. The sole basis of that cause of action was the negligence of the engineer in running his train upon and killing the [362] 39 cattle on tlie railway tracks, and tlie jury returned a verdict against the company for $475 on' this account. A careful perusal of the entire record fails to disclose any evidence of negligence or dereliction of duty in the operation of the train which killed these cattle. They were bunched on the railroad track some distance from any station, in the night, when a train came along and struck them. The proof is plenary and undisputed that the engineer in charge of the train was watchful, active, and careful, and that after he discovered the cattle it was impossible for him to avoid a collision.’ In this state of the case the court should have instructed the jury that there could be no recovery on this cause of action. It-is contended that this error is not fatal, because the killing of. the cattle may be attributed to the negligence of the company in the. construction and maintenance of its pens, which permitted the escape and the killing. It is said that there would have been no killing if there had been no escape, and no escape if there had been no negligence in maintaining the pens. But this contention ignores the real question in the case, and also the pregnant fact that the vérdict of a jury has properly answered that question adversely to the major premise of the argument. The question was whether or not the negligence of the company in maintaining its cattle pens was the proximate cause of the killing of the 19 cattle on the railroad track by the engine. The mere fact that they would not have been killed if they had not escaped does not answer this question, for they would not have been killed although they did escape if they had not bunched themselves on the railroad track, or if the train had not come along ■and struck them at the exact moment when they were on the track .and in its way. Post hoc is not necessarily propter hoc. The question was whether the killing by the éngine was the natural and probable result of the negligence in the maintenance of the pens, not whether it was subsequent to that negligence, nor whether it would not have ■occurred in the absence of that negligence. ' An injury that is the natural and probable consequence of an act of negligence,is actionable because that act is its proximate cause, but an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and that would not have resulted from it, but for the interposition of some new, independent cause that could not have been anticipated. The question, then, was whether the bunching of the 19 cattle on the railroad track in the night, and their death from collision with an engine and train of cars, was the natural and probable consequence of the failure of the company to use ordinary care to maintain its cattle pens. It was whether that bundling and killing could have been foreseen or reasonably anticipated as- the natural and probable effect of’ negligence in maintaining the pens. A natural consequence of an ‘act is one which ordinarily follows from it, — the result which may be reasonably anticipated from it. Was the bunching and killing-of the cattle' on the railroad a result which ordinarily follows from their escape upon unfenced land through which a railroad extends? A probable consequence is one which is more likely to follow its sup [363] posed cause tlian it is to fail to follow. Was it more probable that the result of the escape of these cattle would be their bunching and killing on the railroad than it was that they would wander off on the prairie, and be recovered again, as 94 of them were? To ask ihese questions seems to answer them, and the jury gave the answers which they seem to demand. They answered them in the negative. They found that the killing of these 19 cattle was not the natural and probable consequence of the failure to use ordinary care to maintain the pens, but that it was the result of an independent intervening cause, —the bunching of the cattle on the railroad, and the collision of the engine with them. Unless this court reverses, ignores, or disregards that finding, the verdict for the cattle killed cannot be sustained on the ground that the killing was the effect of negligence in maintaining the pens, because the jury have found that this negligence was not the proximate cause of the killing or of the loss which resulted therefrom. But this finding may not be disregarded unless all reasonable men of unprejudiced minds would draw the opposite conclusion from the facts of this case. It is only in such a case that the question of proximate cause may be withdrawn from the jury. In every other case it is their province to determine it, and their finding upon it is, conclusive. Mr. Justice Strong, in Railway Co. v. Kellogg, 94 U. S.. 474, 476, 24 L. Ed. 259, said: “The true rule Is that what Is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. * * * In the nature of things, there is in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury io look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.” Insurance Co. v. Robbins’ Adm’r, 27 U. S. App. 547, 552, 553, 12 C. C. A. 544, 547, 65 Fed. 178-181, 27 L. R. A. 629; Railway Co. v. Callaghan, 12 U. S. App. 541, 547, 6 C. C. A. 205, 208, 56 Fed. 988, 991; Railroad Co. v. Price, 97 Fed. 423, 38 C. C. A. 239. We are far from being convinced that all reasonable men of unprejudiced minds would disagree with the finding of the jury upon I his question of proximate cause. Indeed, it seems to us that many reasonable men would agree with the jury that the bunching of these 19 cattle on the railroad track, and their killing by the engine and train, was neither the na tural nor probable consequence of the negligence in maintaining the cattle pens; that such a result could not have been foreseen or reasonably anticipated from that negligence, or from the escape of the cattle from the pens; and that it was not the. natural or probable consequence of that negligence or escape, but was the effect of independent intervening causes, — the bunching of the cattle on the railroad track, and the coming of the train in the night at the exact moment when they happened to be in its way, — causes which could not have been foreseen or anticipated, but which unexpectedly intervened, turned aside the natural sequence of events, and produced an unnatural and improbable result. Railway Co. v. Elliott, 12 U. S. App. 381, 386, 5 C. C. A. 347, 349, 55 Fed. 949, 20 L. R. A. 582. [364] Since the jury properly found, upon substantial evidence, that the negligence of the company in constructing and maintaining the pens was not the proximate cause of the loss of the cattle killed, but that the proximate cause of that loss was negligence in operating the engine, and since there was no evidence of any negligence in the operation of the engine, the verdict cannot be sustained. The rulings and proceedings in this case prior to the trial are not the subject of any assignment of errors, and hence we do not notice them. The judgments of the United States court of appeals for the Indian Territory and of the United States court for the Indian Territory are reversed, and the case is remanded to the latter court, with instructions to grant a new trial.