, UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ^ THE DOCTRINE OF PROXIMATE CAUSE LAST CLEAR CHANCE BY MELVILLE PECK OF THE RICHMOND, VIRGINIA, BAR H. CRIM PECK, Gknkral Sai.ks Agent RICHMON]), VIRGINIA ? T 335T \(\\\ f Copyright 1914 By Melville Peck Primed and Bound by L. H. Jenkins, Edition Book Manufacturer Richmond, Va, PREFACE In view of the large and increasing num- ber of actions for damages, and the conse- quent necessity for the frequent application of the doctrine cf proximate cause, this volume has been compiled and written. The object is to bring together the learn- ing of many courts of last resort upon this important topic to be a lamp to the feet of all whose pleasure and duty it is to make investigation of truth and search for causes, and not to cite many cases, but rather to cite a few leading ones from each of many courts. Those most helpful in de- fining and applying the subject have been sought, and as far as possible the latest important enunciations of the courts have been selected. By giving to each court a separate sec- tion it is hoped to avoid the common sal- magundi which is more likely to confuse than enlighten the student. The law of this subject has been reduced to a science. It deals in certainties, ex- (iii) iv PREFACE eluding uncertainties and vague generali- ties ; it looks to the proximate, not to the remote; to the certain, not to the doubtful; to the clear, not to the misty; to the ef- ficient, nearest known cause relating to the effect under consideration. It looks upon the investigation of truth as a search for causes, and upon all philosophy as in quest of the proximate cause. The proximate cause is the only cause which can be reasoned from conclusively. The real trouble now to be encountered abides in the facts of each ])articular case. The whole truth will be found pointing un- erringly to the proximate cause, between which and the effect the connection will be plain and intelligible. Melville Peck, April, 1914. Richmond, Va. CONTENTS Tabic of Cases. Sec. 1 Proximate (\ luse (England) Sec. 2 (United States Supreme Court) Sec. 3 (U. S. C. C. A.) Sec. 4 (District of Columbia) >'ec. 5 (Alabama) Sec. 6 " ' ' ( Arizona ) Sec. 7 (Arkansas) Sec. 8 (California) Sec. 9 ' (Colorado) Sec. 10 (Connecticut) Sec. 11 ' (Delaware) Sec. 12 (Florida) Sec. 13 (Georgia) Sec. 14 (Idabo) Sec. 15 (Illinois) Sec. 16 ' (Indiana) Sec. 17 ' (Iowa) Sec. 18 (Kansas) Sec. 19 (Kentucky) Sec. 20 (Louisiana) Sec. 21 ' (Maine) Sec. 22 (Maryland) Sec. 23 (Massacbusetts) Sec. 24 (Micbigan) Sec. 25 (Minnesota) Sec. 20 (Mississippi) Sec. 27 (Missouri) Sec. 28 (Montana) (V) vi CONTENTS Table of Cases. Sec. 29 Proximate Cause (Nebraska) Sec. 30 " " (Nevada) Sec. 31 " " (New Hampsliire) Sec. 32 " " (New Jersey) Sec. 83 " " (New Mexico) Sec. 34 " " (New York) Sec. 35 " " (North Caroliua) Sec. 36 " " (North Dakota) Sec. 37 " " (Ohio) Sec. 38 " " (Oklahoma) Sec. 39 " " (Oregon) Sec. 40 " " (Peunsylvauia) Sec. 41 " " (Rhode Island) Sec. 42 " " (South Carolina) Sec. 43 " " (South Dakota) Sec. 44 " " (Tennessee) Sec. 45 " " (Texas) Sec. 40 " " (Utah) Sec. 47 " " (Vermont) Sec. 48 " " (Virginia) Sec. 49 " " (Washington) Sec. 50 " " (West Virginia) Sec. 51 " " (Wisconsin) Sec. 52 " " (Wyoming) Sec. 53 Act of God Sec. 54 Act of God and Human Intervention Sec. 55 Inevitable Accident Sec. 56 Pure Accident Sec. 57 Negligence — Proximate Cause Sec. 58 Proximate Cause Defined and Analyzed Sec. 59 Proximate Cause Changes Sec. 60 Last Clear Chance TABLE OF CASES {References are to sections.) Abernathy v. Railroad, 35. Adams v. Young. 37. Ala. Steel Wire Co. v. Tallan, 5. Alberg v. Campbell L. Co., 49. Allison V. City, 48. Anderson v. Evansville, 16. Anderson v. Bransford, 46. Anniston Elec. Sz Gas. Co. v. Rossen, 5. Ark. Val. Trust Co. v. Mcllroy, 7. Ashcraft v. Locomotive Woiks, 17. Atkeson v. Jackson, 49. A. C. L..R. Co. V. Whitney, 12. Axtell V. N. P. R. Co., 14 Backus Y. Norfolk & Atl. Ter. Co., 60. Badovinae v. Railroad, 28. ualdwin v. Railroad, 11. Bales V. McConnell, 38. B. & O. R. Co. V. State use &c., 22. B. & O. R. Co. V. Taylor, 3. Bassford Admr. v. Railroad. 60. Batton V. P. S. Co., 32. Beckham v. S. A. L. Ry., 13. Reiser v. Railroad, 19. Bell V. Bettendorf Axle Co., 17. Belles V. Kellner, 32. Berdos v. T. & S. Mills, 23. Bessler v. Laughlin, 16. Billingsley v. Railroad, 20. Birmingham R. L. & P. Co. v. Fox, 5. (vii) ii TABLE OF CASES Birm. Ry., L. & P. Co. v. Hinton, 5. Birmingham & Atl., R. Co. v. Mattison, 5. Black V. Railroad, 23. Blodgett C. Co. V. Cheney L. Co., 20. Blythe v. Railroad, 9. B. of T. Co. y. Cralle, 48. Boston & M. R. Co. v. Miller, 3. Brame v. Light etc., Co., 2G. Braun v. Craven, 15. Bridge v. Railroad, CO. Briggs V. Durham Trac. Co., 53. Brossard v. Morgan Co., 51. Brown v. Kendall. 5G. i.rown V. A. S. & W. Co., IG. Brown v. Pillow, 3. Brown v. Railroad, 39. Bruggeman v. Railroad, 60. Buchanan v. L. A. H. Co., 39. Burk V. Creamery P. Mfg. Co., 17. Burleson v. M. L. & P. Co., 47. Burrus v. Hines, 4S. Butcher v. Railroad, 50. Butler V. N. E. S. Co., 23. Butler V. Railroad, 21. Butterfield v. Forrester, GO. Carlock v. Denver &c., Co., 9. Carnes v. Finnigan, 23. Carnes v. Iowa S. F. M. Assn., 56. Carter v. Towne, 23. Case V. Clark, 10. Casteel v. Brick Co., 18. Cavanaugh v. M. C. R. Co., 24. C. C. Co. V Beard, IG. Central of Ga. R. Co. v. Sigma L. Co., 5. Chatta. L. & P. Co. v. Hodges, 44. C. & O. R. Co. v. Wills. 48. C. & O. R. Co. V. Bell, Admr, of Paris, 48. TABLE OF CASES Chicago R. Co. v. Richardson, 3. Chicago R. I. & P. Ry. v. McKone, 54. City of G. F. V. Paulsness, 3G. City of II. V. Jahnke, IG. City of 1 11(1. V. Slider, 10. City of Logaiisport v. Smith, IG. City of Richmond v. Gay's Admr., 48. Clark V. Railroad, 38. Clark V. Chambers, 1. Clark V. Wallace, 9. Claypool V. Wigmore, IG. Cleveland etc., R. Co. v. Powers, IG. Cleveland v. Bangor, 21. Clinch Coal Co. v. Osborne, 48. Coel V. G. B. Trac. Co., 51. Cole V. Ger. S. & L. Soc, 3. Collins V. Express Co., 32. Conley v. Exp. Co., 56. Cooper V. Railroad, 35. Cooper V. County, 42. Corbin v. Railroad, 47. Cornet Phos. Co. v. Jackson, 12. Cons. B. Co. v. Doyle, 58. Consol. Gas Co. v. Getty, 22. County v. Hixon, 13. County V. Amer. Sur. Co., 42. Coughlin V. Blanl, 22. Craig V. Raili'oad, 2. Craig V. Railroad, 42. Crandall v. Consol. Tel. Co., 6. Cnmb. Tel. Co. v. Kranz, IG. Cumb. Tel. and Tel. Co. v. Woodham. 2G. Cummings v. Ins. Co., 17. Davies v. Mann, 60. Davis v. Mercer L. Co., 16. Davis V. Railroad, 42. Deisenrieder v, K. M. M. Co., 51. TABLE OF CASES Delinks v. N. Y. etc., Co., 10. Deming v. M. 0. Co., 44. Denbeigh v. O. W. R. & N. Co., 14. Devine v. Railroad, 15. Dougherty v. Railroad, 17. Duckworth v. Stalnaker, 50. Dyerson v. Railroad, 58. Eaton V. Railroad, 11. Eaton V. Marion etc.. Coal Co., 15. Edge V. Railroad, 58. Edward v. M. B. Co., 4. Ehrgott V. Mayor, etc., 57. Eichman v. Buckheit, 51. i'lliff V. Railroad, 39. Elliott V. N. Y. etc., R. Co., 10. Esrey v. Railroad, 8. Farley v. Raili-oad, 50. Farrington v. Cheoponis, 10. F. K. C. Ry. V. Wade, 12. Feldschneider v. Railroad, 51. Fergusson v. Brent, 55. Fidel. & Cas. Co. v. Cutts, 5G. Filson V. Express Co., 18. Flint ^. W. Mfg. Co. v. Beckett, 16. Foster v. Malberg, 51. Fowlkes V. Railroad, 48. Fox V. Barkeman, 16. Frasher v. S. & L. Co., 13. Frostraau v. Stirratt, 49. Fuller V. Margaret M. Co., 50. Garrigan v. Kennady, 43. Georgia R. & B. Co. v. Rives, 13. Ga. S. & F. Co. V. Barfield, 54. (Verity's Admr. v. Haley, 50. Gila Valley G. & N. Co. v. Lyon, G. Gleason v. Railroad, 53. Goodwin v. A. C. L. R. Co., 13. TABLE OF CASES Goure v. Storey, 14. Great N. Ry. v. Thompson, 3. G. T. R. Co. V. Cuinmings. 2. Green v. Railroad, 5S. Griffen v. Manice, 4. Giienther v. Railroad, 4. Hale V. Mich. Cent. Ry., 3. Hall V. Railroad, 4(>. Hammelvvright v. Baker, 58. Hampson v. Taylor, 41. Haukin.s v. Reimers, 29. Hardy v. Lumber Co., 35. Harford Co. v. Pabst B. Co., 3. Harriman v. Railroad. 37. Harris v. Railroad, 27. Hastings v. Stetson, 21. Hawkins v. Hubbell, 44. Heckman v. Evenson, 36. Heinel v. Railroad, 11. Heiting v. Railroad, 15. Henry v. Railroad. IS. Hillebrant v. Mauz, 49. H. & B. Car Co. v. Przeeziankowski, 1(>. Higgins V. Dewey, 34. Hobbs V. Railroad, 57. Hocking v. Assurance Co., 49. Home O. & G. Co. v. Dabney, IS. Ide V. Railroad, 47. Ind. Trac. Co. v. Kidd, IG. Ind. U. R. Co. V. Waddington, IG. Ind. St. R. Co. V. Schmidt, IG. Ins. Co. V. Tweed, 2. Inland & S. C. Co. v. Tolson, 60. Jackson v. BntUir, 27. Jackson Tp. v. Wagner, 40. Jacoby Co. v. Williams, 4S. Jenkins v. La Salle etc., Co., 15. li TABLE OF CASES Jennings v. Davis, 3. Johnson v. Tel. Co., 25. Johnson v. Railroad, 35. Josliu V. Linden, 13. Kaiser v. Railroad, 3. Kane v. Railroad, 27. Kasz V. Johnson Service Cc, 51. Keiffer v. Railroad, 19. Kennon v. Gilmer, 28. Kenova Transf. Co. v. Mouongaliela etc., Co., 55. Kent Mfg. Co. v. Ziiairernian, 9. Ring v. Island S. Co., 16. Kluber v. Shannon. 18. Kneeshaw x. D. U. Ry., 24. Knott V. Peterson, 17. Koloff V. Railroad, 49. Knhn & Neeb v. Railroad. 32. Kuhuis V. Lewis River B. & L Co., 49. Laidlaw v. Sage, 34. La Loude v. Peake, 25. Lamb v. Lacey, 14. Lamb v. Railroad, 42. Lane v. Atl. Works, 23. Lane P.ros. Co. v. Barnard, 57, 58. Lathian v. Richards, 1. Lee V. Powell, 20. Lee V. Railroad, 41. Leeds v. N. Y. Tel. Co., 34. Lemke v. Milwaukee etc., Co., 51. Liidtke v. Railroad, 37. Little Rock T. & E. Co. v. McCaskill, 7. I-ogan V. Hope, 13. Loganbuagh v. Railroad, 30. Loganbaugh v. Va. City T. Co., 30. Loisean v. Arp., 43. L. & N. R. Co. V. Crassman, 19. L. & N. xi. Co. V. Young, 5. TABLE OF CASES L & N. R Co. V. Williams, 5. Lopez V. Miuiug Co., G. Lowry v. Railroad, 34. Lutz V. Railroad, 33. Lyous V. Ha i' road. 28. Mahaffey v. Lumber Co., 50. Mahogany v. Ward, 41. Mahoney v. Railroad, 47. Malcolm v. Railroad, 5. Marble v. City of Worcester, 23. Marsdou v. Ins. Co., 1. Marsiglia v. Dozier, 8. Martin v So. Ry., 42. Masliburn v. St. Joe Imp. Co., 14. IMasou V. Post, 57. Miinsey v. Webb, 4. Mayor v. F. Co., 44. Mayor of Macon v. r\vkes, 13. Metz V. Postal Tel. Co., 49. M. & O. R. Co. V. C. M. Brewing Co., 5. M. D. & S. R. Co V. Moore, 13. McCahill v. N. Y. Trans. Co., 34. McDaiuel v Railroad, 20. McDermott v. Railroad, 23. McDonald v. Toder, 18. McGaliey v. Railroad, 29. McKibbin v. Bax & Co., 29. McKinley v. Jutte & Co., 55. Miller v. Kelley Coal Co., 15. Miller v. Rapids S. & D. Co., 17. Miller v. Railroad, 37. Milwaukee R. Co. v. Kellogg, 2. Miner v. McNamara, 10. Mitchell V. Marker, 4. Mize V. Tel. Co., 28. Mobus V. Waitsfield, 47. Murdock v. Railroad, 57. V TABLE OF CASES Mullen V. W. B. G. & E. Co., 40. Mui-ijhy V. So. P. Co., 30. Nalewaja v. N. I. Co., 49. Nail V. Taylor, 15. National Fuel Co. v. Green, 9. Neal's Admr. v. Railroad, 11. Neliring v. Conn. Co., 10. Nicholas v. Marsland, 1. Nicholas v. Tittsfleld Tp., 40. Nickey v. Steuder, 16. Nilson V. City of K., 28. Norman v. V-P Coal Co., 50. O'Connor v. Ditch Co., 30. O'Donnell v. R-C Mfg. Co., 15. Omberg v. Accident Assoc, 19. Osborne v. Van Dyke, 56. O'Sullivan v. Lumber Co., 51. Owen V. Cook, 36. Owens V. Charlotte, 35. Palmer v. Railroad, 39. Penn v. Ins. Co., 35. Penn. R. Co. v. Kerr, 34. Philbrick v. Railroad, 21. Philmer v. Boise Trac. Co., 14. Pickett V. Railroad, 60. Pielke v. Railroad, 43. I'lace V. Sterling, 10. Pollard V. F. I. Oil Co., 42. I'owers V. Sumbler, IS. Powers V. Railway, 17. Pulaski G. L. Co. v. McCliutock, 7. P. H. & F. M. Roots Co. V. Meeker, 16. P-W Ins. Co. V. W. U. Tel. Co., 15. Quinby v. Woodbury, 31. Railroad v. Bighara, 45. Railroad v. Brown, 2. Railroad v. Brown, 57. TABLE OF CASES Railroad v. Calhoun, 2. Railroad v. Chapman, 5. Railroad v. Cook, 52. Railroad v. Edwards, 45. Railroad v. Hess, 38. Railroad v. Johnson, 45. Railroad v. Jones, 57. Railroad v. Jones, 59. Railroad v. Kellogg, 57. Railroad v. Kelly, 44. Railroad v. Lilley, 29. Railroad v. Paris, 59. Railroad v. Reed, 45. Railway v. Staley, 37. Railroad v. State, 57. Railroad v. Street, 45. Railroad v. Wall, 45. Railroad v. Welch, 45. Reidell v. Trae. Co., GO. Repub. Iron Co. v. Lulu, 16. Richmond Tr. Co. v. Martin, 58. Rincicotti v. O'Brien Co., 10. Ring V. City, 34. Rio Grande Co. v. Boyd, 9. Rippetol V. Feely, 14. Roanoke Ry. Co. v. Carrol, CO. Roddy V. Railroad, 57. Rossiter v. Peter C. G. Factory, 34. Russel V. Ger. Fire Ins. Co., 25. Russell V. Fernandez, 20. Ryan v. Railroad, 34. St. L. & So. Ry. V. INIackey, 7. St. L. & So. Ry. V. Fultz, 7. St. L. & S. F. R. Co. V. Kilpatrick, 7. Saunders v. Coleman, 53. Savana Elec. Co. v. Wheeler, 13. Schaeffer v. Jackson Tp., 40. vi TABLE OF CASES ►Scholl V. Belcher, 39. Schwartz v. Cal. G. & E. Corp., 8. Scott V. Shepherd, 1. Seale v. Railroad, 45. Seckerson v. Sinclair, 36. Seith V. Com. Elec. Co., 15. Serdan v. Falk Co., 51. Silock v. Railroad, 4G. Smith V. Magiuuis, 7. Smith V. Conn. Ry. & L. Co., 10. Smith V. Railroad, 60. Soule V. Weatherby, 46. So. Ry. Co. V. Crawford, 5 So. R. Co. V. Bailey, 48, 60. Supreme Lodge K. of P. v. Crenshaw, 13. Swayne v. Conn. Co., 10. Sweet V. Perkins, 34. Swift V. Newberry, 47. Staiuback v. Rae, 55. Standard Oil Co. v. Wakefield, 48. Staufield v. Anderson, 6. Stanford v. St. L. & S. F. R. Co., 5. Stall V. Laubengayer, 24. State V. Railroad, 31. Stevens v. Saunders, 4. Stone V. Railroad, 46. Strange v. B. L. Co., 7. Strobeek v. Bren, 25. The Chi. H. & B. Co. v. Mueller, 15. The Germanic, 2. The Santa Rita, 3. The Mabey, 55. The Majestic, 55. The Germanic, 57. The M. McCarthey Co. v. Halloran, 36. Therriaiilt v. England, 28. Thompson v. Railroad, 8. TABLE OF CASES xvii Thompson V. Kailroad, 49. Thoresen v. Lumber Co., 49. Tlaubrou v. Dravo Co., 40. Tibbitts V. Railroad, 17. Tomasi v. Denk Bros., 15. Towle V. Morse, 21. Towu of Lyons v. Watts, 9. ♦^ Trout V. Phila. E. Co., 40. Trustees B. I. v. Siers, 50. Tsoulfas V. N. E. & S. Co., 27. T. & K. W. Ry. V. Pen. L. T. M. Co., 12. U. S. V. Boyd, 56. Van Dyke v. Ry. Co., 47. Va. Car. Chem. Co. v. Mayson, 5. Virginia etc., Co. v. Kiser, 4S. Votaw V. McKeever, 18. Wabash R. Co. v. Tippe. T. Co., 16. Walker v. Collinsworth, 19. Wallace v. Keystone Auto Co., 40. Ward V. Ely-Walker Co., 27. Ward V. Railroad, 35. Washington, A. & Mt. V. Ry. Co. v. Lukens, 4. Washington v. Railroad, 50. Waters F. O. Co. v. Deselms, 2. Watts V. Montgomery Tr. Co., 5. Weatherby v. N. C. & St. L. R. Co., 5. Webb V. Railroad, 34. Wells V. Railroad, 39. W. U. Tel. Co. V. Milton, 12. Williams v. Breunan, 23. Williams v. Dickson, 25. Willoughby v. W. U. Tel. Co., 34. Wil. City Ry. v. White, 11. Willis V. County, 40. Wilson V. Boise City, 54. Wilson V. Railroad, 48. Winfree v. Jones, 48. xviii TABLE OP CASES Wodnick v. Luna Park, 49. Worley v. Spreckles, S. W. & A. xc. Co. V. Bryant, 13. Yeates v. Railroad, 15. Yost V. Railroad, 27. DOCTRINE OF PROXIMATE CAUSE SECTION 1. ENaLAND. ^1. In the evening of the 28th day of October, 1770, at Milbome Port * * * it being the day the fair was held there, defen- dant threw a lighted serpent, being a large squib, consisting of gunpowder and other combustible materials, from the street into the market-house, which was a covered bulding, supported by arches, open at one end and enclosed at the other end and on both sides, when a large concourse of people were then assembled. The lighted serjjent or squib fell upon the standing of one Yates, a vendor of gingerbread; one Willis instantly, to prevent injury to him- self, threw the squib across the market- house, when it fell upon another standing there, of one Eyall, on which he was expos- ing wares for sale; Ryall instantly and to (1) 2 DOCTRINE OF Sec. 1. England. save liimself and his goods threw the squib to another part of the building, and in so throwing struck plaintiff in the face, there- with putting out one of his eyes. The jury found for plaintiff, subject to the opinion of the court. The court said : ''The act of throwing the squib into the market-house was of a mischievous nature, and bespeaks a bad intention, and whether the plaintiff's eye was put out mediately or immediately thereby, the defendant, who first threw the squib, is answerable in this action ; but sup- pose the defendant had no bad or mischiev- ous intention when he threw the squib, yet as the injury done was not inevitable, this action well lies against him" * * * _ {Saott V. Shepherd, 3 Wilson 403, 2 W. Blackstone's 892.) U 2. Defendant having unlawfully placed a dangerous instrument in the public high- w&,y, was liable in respect of injuries occa- sioned by it to plaintiff, who was lawfully using the road, notwithstanding the fact that the immediate cause of the accident was the intervening act of a third person in removing the dangerous instrument from the carriageway, where defendant had PROXIMATE CAUSE. 3 Sec. 1. England. placed it, to the foot-imth, where plaintiff was injured by it. {Clark v. Chambers, 3 Q. B. 327.) 1|3. Plate glass windows were insured against ''loss or damage originating from any cause whatsoever except fire, breakage during removal, alteration, or repair of premises." A fire broke out on adjoining premises. Plaintiff*, assisted by his neigh- bors, was removing his merchandise from the room — a mob attracted by the fire, tore down the shutters and broke the insured glass for the purpose of plunder. Held, that the proximate cause of damage to glass was the lawless act of the mob, and that it did not originate from the fire or breakage during removal." (Marsdon v. Ins. Co., 1 C. P. 232.) H 4. ' ' One who stores water on his own land, and uses all reasonable care to keep it safely there, is not liable for damages effected by an escape of the water, if the escape be caused by the act of God, or vis 7najor; e. g., by an extraordinary rainfall, which could not reasonably have been an- ticipated, although, if it had been antici- 4 DOCTRINE OF Sec. 1. Enfjland. pated, the effect might have been pre- vented." ^5. "When the law creates a duty and the party is disabled from performing it without any default of his own, by the act of God, or the King's enemies, the law will excuse him; but when a party by his own contract creates a duty, he is bound to make it good notwithstanding any accident by in- evitable necessity. ' ' {Nicholas v. Marsland, 2 Ex. Div. 1.) ^6. ' ' Where the proximate cause is the malicious act of a third person against which precautions would have been inoper- ative, the defendant is not liable in the absence of a finding either that he insti- gated it or that he ouf>ht to have foreseen and provided against it." {Lathian v. Richards, 1 Law Kepoii; 263 (1913.) PROXIMATE CAUSE. SECTION 2. UNITED STATES SUPREME COURT. 1[7. ''One obliged to form a judgment in an emergency on the spot is not to be held accomitable in the same measure as one able to judge the situation in cold ab- straction." {Railroad Co. v. Broivn, 229 IT. S. 317. Citing The Germanic, 196 U. S. 589.) Assumption or Risk and Conteibutoey Negligence Distinguished. 5[ 8. " There is a practical and clear dis- tinction between assumption of risk and contributory negligence. By the former, the employee assumes the risk of ordinary dangers of occupation and those dangers that are plainly observable ; the latter is the omission of the employed to use those pre- cautions for his own safety which ordinaiy prudence requires." {Craig v. Railroad, 220 U. S. 590.) 1[9. "Although defendant may have been originally in fault, an entirely depend- ent and unrelated cause subsequently inter- 6 DOCTRINE OF Sec. 2. United States Supreme Court. vening, and of itself sufficient to have caused the mischief, may properly be re- garded as the proximate cause of plaintiff's injuries." {Railroad v. Calhoun, 213 U. S. 1, citing Insurance Co. v. Tiveed, 7 Wall. 44.) % 10. ' 'Where the original vendor know- ingly sells, as coal oil, a mixture of coal oil and gasoline, of such inflammable charac- ter as to be unlawful under the local statute, to a vendee who in ignorance of its unlaw- ful nature sells it to a third party in like ignorance, the original vendor is directly responsible to the final purchaser for the consequences of an explosion, produced solely by reason of such unlawful nature while the oil is being used in a legitimate manner. In such a case the responsibility of the original vendor rests not on contract but in tort. On the facts in this case, and in view of the ignorance of both vendees in regard thereto, the unlawful character of the ar- ticles sold lield to be the proximate cause of plaintiff 's injuries." * * * (Waters- P. 0. Co. v. Besehns, 212 U. S. 159.) PROXIMATE CAUSE. 7 Sec. 2. United States Supreme Court. ^11. The insurance was against fire, and covered certain bales of cotton in the Ala- biUJia warohoiise in Mobile. The policy contained a i)roviso that the insurers should not be liable to make good any loss or damage by fire which might happen or take place by means of * * * * * explosion *****. During the life of the policy, an explosion occurred in a nearby ware- house, starting a fire which extended to the Alabama warehouse, destroying the in- sured cotton. Held, that the explosion was the i^roximate cause of the destruction of the insured cotton; that the intervening burning building did not constitute a new, intervening cause. {The La. Mutual Ins. Co. V. Tweed, 7 Wallace 44, 19 Law Ed. 65.) 5112. "The question always is: Was there an unbroken connection between the wrongful act and the injuiy, a continuous operation? Did the facts constitute a con- tinuous succession of events, so linked to- gether as to make a natural whole, or was there some new and independent cause in- tervening between the wrong and the in- jury? * * * it must appear that the injury was the natui'al and probable consequence 8 DOCTRINE OF Sec. 2. United States Supreme Court. of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. ' ' {Mihvaiikee Etc., R. Co. V. Kellogg, 94 U. S. 469, 24 Law Ed. 256.) 51 13. ''If the negligence of a railroad company contributes to, that is to say, has a share in producing any injury to its em- ployee, it is liable, even though the negli- gence of a fellow-servant of the injured person is also contributory." {G. T. R. Co. V. Cummings, 106 U. S. 700, 27 Law Ed. 266.) PROXIMATE CAUSE. SECTION 3. U. 8. C. C. A. 51 14. ''An injury which is not the natu- ral consequence of an act or omission, and that would not have resulted but for the interposition of a new and independent cause, is not actionable." {Chicago, Etc., R. Co. V. Richardson, 121 C. C. A. 144.) 51 15. ''In determining the cause of a loss for the purpose of fixing insurance liability, when concurring causes of the damages appear, the proximate cause to which the loss is to be attributed is the dominant, the efficient one that sets the other causes in operation ; and causes which are incidental are not proximate, though they may be nearer in time and i^lace to the loss." {Hartford, Etc., Co. v. Pabst B. Co., 120 C. C. A. 45.) 51 16. Proximate cause and contributory negligence are ordinarily questions of fact for the jury to determine under all the circumstances. {Great N. Ry. v. Thomp- son, 118 C. C. A. 79 ; Hale v. Mich. Cen. Ry., 118 C. C, A. 627,) 10 DOCTRINE OF Sec. 3. u. S. C. C. A. % 17. ' ' Questions of negligence do not become questions of law for the court, ex- cept where the facts are such that all rea- sonable men draw the same conclusions from them. * * *" {B. d 0. R. Co. v. Taylor, 109 C. C. A. 172.) 5118. ''One of the most valuable tests to apply to detennine whether a negligent act was the proximate or remote cause of an injury is to determine whether a reason- able human agency has intervened, suffi- cient of itself to stand as the cause." {The Santa Rita, 100 C. C. A. 360, 30 L. R. A. (N. S.) 121.) ^19. ''A respondent, who, * * * * in good faith, took possession of a dredge be- ing operated by libelant, cannot be held liable in damages on the ground that by reason of such action libelant's employees on the dredge left his service in violation of their contracts, and he was delayed in his work * * * although he at once retook possession of the dredge ; such damages not being the direct and proximate result of respondent's claim but remote and specu- lative." {Broivn v. Pillotv, 98 C. C. A. 579.) PROXIMATE CAUSE. 11 Sec. 3. U. S. C. C. A. 5f 20. ' ' The owner of a pipe line used for the transportation of petroleum, the es- cape of oil from which may cause damage to the property of others, is not bound to the e^^ercise of such a high degree of care as will absolutely prevent leakage of such oil under any circumstances, * * * * ." * * * * ''The blowing out of a rubber gasket between the two parts of a joint does not constitute evidence of negligence in the construction or operation of the pipe line" * * * *. 5121. "Plaintiff owned buildings near defendants' pipe line, one of which was occupied by a third person as a blacksmith shop. The blowing out of a gasket from a pipe joint in the evening caused a leakage of oil which spread over the ground around and under plaintiff's buildings. When the blacksmith came to his shop in the morning there was oil under it, the floor being two feet from the ground, and also in front where he was compelled to walk through it. He started a fire, heated a piece of iron, and cut off a piece on the anvil, and suffered such piece, which was red hot, to fall through a crack in the floor where it set 12 DOCTRINE OF Sec. 3. u. 8. C. C. A. fire to the oil, and plaintiff's buildings were destroyed" — by that fire. ''HELD that, aside from any question of defendants' negligence, the act of the blacksmith, which was that of an indepen- dent intervening agent, for which defend- ants were not responsible, was negligent as a matter of law, and was the proximate cause of plaintiff's loss." {Jennings et al V. Davis, 109 C. C. A. 451.) H 22. " The fact alone that an act of de- fendant was in violation of a penal statute does not afford ground for the recovery of damages by a third person, unless such act was also the proximate cause of the injury complained of." Id. 51 23. ''An act of negligence is not the 'proximate cause' of an injury, in a legal sense, where there was an independent in- tervening cause, unless the injuiy was not only the natural, but the probable result of such negligence, and the intervening cause should reasonably have been fore- seen." (The Santa Rita, 173 Fed. R. 413.) PROXIMATE CAUSE. 13 Sec. 3. U. S. C. C. A. Definition. ^24. ''A natural consequence of an act is the conse(juen('e which ordinarily follows it — the result which may be reasonably an- ticipated from it. A probable consequence is one that is more likely to follow its sup- posed cause than it is to fail to follow it." {Cole V. Ger. S. cC- L. Soc, 12-1: Fed. 115, 59 C. C. A. 595, 63 L. R. A. 416.) Other cases on proximate cause : Kaiser V. Railroad, 222 C. C. A. 235; Boston cG M. R. Co. V. MUler, 122 C. C. A. 270; Chicago, Etc., R. Co. V. Richardson, 121 C. C. A. 144. 14 ■ DOCTRINE OF SECTION 4. D. C. ^25. ''If the exposure of a passenger to the cold weather, caused by the negli- gence of a railroad company in failing to furnish her shelter after a collision, re- sulted in developing a tuberculous condi- tion, or hastening the development of such condition already existing, the company is liable." {Washington A. cG Mt. V. Ry. Co. V. Liikens, 32 App. D. C. 442.) If 26. The proximate cause in actions for damages for personal injuries is ordinarily a question for the jury. (32 App. D. C. 442.) 51 27. " In an action against a master for the death of his servant, the negligence of a fellow servant contributing to the injury will not prevent a recovery if the negli- gence of the master had a share in pro- ducing it." {Stevens v. Saunders, 34 App. D. C. 321.) Elevator Cases. % 28. The proximate cause of an injury is ordinarily a question of fact for the juiy. PROXIMATE CAUSE. 15 ♦Sfec. 4. D. C. If there are no circumstances from which a jury can reasonably find that the negli- gence of the defendant was the proximate cause of tlie injury, tlie (juestion is one for the court. If the facts are such as to cause reasonable minds to differ, the question is one for the jury. {Munsey v. Wehb, 37 App. D. C. 185.)' ^29. See cases on subject of liability for injury to elevator passengers in note to Mitchell V. Marker, 25 L. R. A. 33, 51 Ohio St.; Edivard v. M. B. Co., 2 L. E. A. (N. S.) 744, 61 Atl.— R. I. ^30. "It is doubtful if there is any knowTi method of conveyance in which a higher degree of care is required in its construction and operation than that of an elevator." {Munsey v. Webb, 37 App. D. C. 185, 187.) See Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 82 Amer. State 630, 52 L. R. A. 922. 5[31. "U^iere, in an action against a street railway company by an administra- tor whose decedent was injured by the pre- mature starting of a car of the defendant which the decedent was attempting to 16 DOCTRINE OF Sec. 4- D. C. board, it appeared that before and at the time of the accident, the deceased had heart disease so far developed that it would gradually have brought on a fatal hemor- rhage at some indefinite future time, but that the final result of the decease was brought about or hastened by the accident, the proximate cause of the death, in con- templation of law, is the injury so received, and not the disease." {Guoither v. Rail- road, 23 App. D. C. 493.) PROXIMATE CAUSE. 17 SECTION 5. ALABAMA. f 32. ''It is settled in Alabama, aud we think it is the weight of authority, that a violation of a statute or an ordinance is negligence i)er se, and a i)erson proximately injured thereby may recover for such in- juries against the violator of the law." ''Where the plaintiff violates an ordi- nance, it may be contributory negligence if it jn'oximately contributed to the injury, provided the ordinance was enacted for the defendant's benefit, and not merely for the public generally — or for a class," {Watts V, Montgomery Trac. Co., 175 Ala. 102, 105, 57 So. 471.) 51 33. "Where plaintiff's negligence though slight, is the proximate cause of the injury, he cannot recover for the simple antecedent negligence of defendant." {Bir- mingliam R. L. d P. Co. v. Fox, 174 Ala. 657, 56 So. 1013.) See L. & N. R. Co. v. WUliams, 172 Ala., 560, 55 So. 218. 5[34. Action on attachment bond. — Dam- age must be the natural and proximate con- 18 DOCTRINE OF Sec. 5. Alabama. sequence of the wrong, not the remote or accidental result. {Pollock v. Gantt., 69 Ala. 373.) U 35. ' ' A wrongdoer is responsible only for the proximate consequence of his acts." (Central of Ga. R. Co. v. Sigma Lumber Co., 170 Ala., 627, 628, 54 So. 205.) ^ 36. Proximate cause a question for the jury. {Weatherhy v. N. C. d St. Louis R. Co., 166 Ala., 575, 577, 51 So. 959.) 5137. Contributory negligence, proxi- mate cause — children under seven years not chargeable with ; over seven and under fourteen are presumed prima facie to be incapable thereof; those over age of four- teen are presumed to be capable of con- tributory negligence. {Birmingham & Atl. R. Co. V, Mattison, 166 Ala. 602, 52 So. 49.) 5[38. ''Wherever it appears that the negligence of a servant was the proximate cause of his own injury, the negligence of the master ceases to be the efficient proxi- mate cause of the injury." {Ala. Steel Wire Co. v. Tallant, 165 Ala. 521, 51 So. 835.) PROXIMATE CAUSE. 19 Sec. 5. Alabama. 5[39. ''To be actionable the negligence relied on must be the efficient proximate cause of the injury. ' ' (So. Ry. Co. v. Cratv- ford, 164 Ala. 178, 51 So. 340.) 51 40. "The doctrine of subsequent neg- ligence or last clear chance is recognized in Alabama." {Stanford v. St. L. tC- S. F. R. Co., 163 Ala. 210, 50 So. 110.) See L. & N. R. Co. V. Young, 153 Ala. 232, 45 So. 238. ^41. "Contributory negligence of the person injured is no defense where the proximate cause of the injury to one known to have been in peril is due to a wilful or wanton wrong." {Anniston Elec. d Gas Co. V. Rossen, 159 Ala. 195, 196, 48 So. 798, 133 Amer. State, 32.) ^42. "The legal relation of cause and effect must be established between the neg- ligence alleged and the injury suffered to sustain an action." {Malcolm v. L. cG N. R. Co., 155 Ala. 337, 46 So. 768; Virginia- Carolina Chem. Co. v. Mayson, 7 Ala. App. 588, 62 So. 253.) 5[43. "The action was for injuries to a person on account of the railroad's negii- 20 DOCTRINE OF ^t-c. 5. Alabama. gence in setting fire to a dwelling. The * * * person escaped from the house without in- jury, but returned to the burning house and received the injury complained of. Held, that the causal connection between the neg- ligence charged and the injury received was not broken by leaving the house in the first instance." {Birmingham Ry. L. d P. Co. V. Hinton, U6 Ala. 273, 40 So. 988.) See M. & 0. R. Co. v. C. M. Breiving Co., 146 Ala. 404, 41 So. 17. 5[44. "Where plaintiff was struck and injured, while walking along a path by the side of a railroad track, by a cow which was thrown from the track by the engine, and which fell against plaintiff after strik- ing the ground, the injury is the proximate consequence of the engine striking the cow ; and the railroad company is liable on ac- count of it, if there was negligence on the part of the engineer, although he was guilty of no negligence towards the plaintiff' per- sonally." (Railroad v. Chapman, 80 Ala. 615.) PROXIMATE CAUSE. 21 SECTION 6. ARIZONA. «[| 45. "The term 'proximate cause' in the sense in which it is ordinarily used, means the efficient cause, which in a natural and continuous se(|uence, unbroken by any new and independent cause, produced the event, and without which that event would not have occurred." ''Solely" in an instmction to the jury was held to be good in place of "proximate cause." {Gila Valley, G. & N. Rij. Co. v. Lyon, 8 Arizona, 118, 71 Pacif. 957.) (Second hearing, 9 Arizona 218, 80 Pacif. 337.) CONTRIBUTOKY NEGLIGENCE, ^46. "As to the general rule that a plaintiff cannot recover for the negligence of the defendant if his own want of care or negligence has in any degree contributed to the result complained of, there can be no dispute." {Lopez v. Mining Co., 1 Ari- zona, 464, 480.) ^47. "Ordinary care is the degree of 22 DOCTRINE OF Sec. 6. Arizona. precaution which ordinarily prudent per- sons would exercise under like circum- stances. The failure to exercise such care is negligence. Negligence is therefore never absolute or intrinsic, but is always relative to the existing circumstances." {Stanfield v. Anderson, 5 Arizona 1.) See Orandall v. Consol. Tel. Co., 14 Arizona, 322. PROXIMATE CAUSE. 23 SECTION 7. ARKANSAS. 5[48. '*In order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and proximate consequence of the negligence and that it ought to have been foreseen in the light of the attending circumstances, but it is not necessary that the particular injury which did happen should have been actually foreseen." (Pidaskl G. L. Co. v. McClintock, 97 Ark. 576, 583, 134 S. W. 1189.) See St. Louis cG So. Rij. Co. v. Fultz, 91 Ark. 260, 120 S. W. 984. ^ 49. ' ' Where two concurring causes pro- duce an injury which would not have re- sulted in the absence of either, the party responsible for either cause is liable for the consequent injury, and this rule applies where one of the causes is the act of God. ' ' {St. Louis So. Ry. Co. v. Mackey, 95 Ark. 297, 301, 129 S. W. 78.) 51 50. ' ' Before one can be held liable for an alleged negligent act, it must be the 24 DOCTRINE OF Sec. 7. Arkafiisas. proximate cause of the injury, and also be of such a nature that the consequent injury should be one which, in the light of attending circumstances a person of ordi- nary foresight and prudence would have anticipated." {Ark. Valley Trust Co. v. Mcllroy, 97 Ark. 160, 165, 133 S. W. 816, 31 L. R. A. (N. S.) 1020.) 51 51. Concurrent cause of injury : Here a horse scared at a pair of goats in road and backed into pond and was drowned. {Strange v. Bodcaw Lumber Co., 79 Ark. 490, 96 S. W. 152.) 1[52. False certificate of acknowledg- ment by a notary is not proximate cause of loss. {Smith v. Maginnis, 75 Ark. 472, 89 S. W. 91.) 51 53. "Where a boy pushed from the platform of a rapidly moving train by a brakeman, caught at the iron handrail, and fell under the wheels, so that his foot was crushed, the push was the proximate cause of the injury." {St. L. d S. F. R. Co. v. Kilpatrick, 67 Ark. 47, 54 S. W. 971) 51 54. ''Where a street car company sev- ered the hose through which firemen were PROXIMATE CAUSE. 25 Sec. 7. Arkansas. throwing a stream upon a burning building, wliereu])on furniture contained therein, which otlierwise could have been saved, was consumed for wixnt of water to extinguish the fire, the act of cutting off the hose is to be regarded as the proximate cause of the injury." {Lit fie Rock T. d E. Co. v. Mc- CasMll, 75 Ark. 133, 86 S. W. 997, 70 L. R. A. 680.) 26 DOCTRINE OF SECTION 8. CALIFORNIA. 5155. ''An employee cannot recover on account of defective machinery or appli- ances or unsafe place in which to work, unless the same has directly caused or con- tributed to the injury, in other words, was the proximate cause of the injury. ' ' ( Wor- ley V. Spreckles Bros., C. Co., 163 Cal. 60, 124 Pac. 697.) 51 56. "Negligence is not presumed, and the plaintiff must allege and prove that the negligent act of the defendant was the direct or proximate cause of the injury, or he cannot recover." {Marsiglia v. Dozier, 161 Cal. 403, 119 Pac. 505.) See Schwartz v. Cal. G. cC- E. Corp., 163 Cal. 398, 125 Pac. 1044. 5157. "In determining the question of liability for a negligent act, the 'last clear chance' doctrine is only apjDlicable to a defendant who was actually aware of the fact that the plaintiff had negligently put himself in a position of danger ; it does not apply to the case of a defendant who would PROXIMATE CAUSE. 27 Sec. 8. California. have discovered the plaintiff's peril but for remissness on his part." {Thompson V. Railroad, 165 Cal. 748, 134 Pacif. 709.) ^58. "The party who last had a clear opportunity of avoiding the accident, not- withstanding the negligence of his opi^o- nent, is considered solely responsible for the injur}'." {Esrey v. Railroad, 103 Cal. 541, 37 Pac. 500.) See post Sec. 60. 28 DOCTRINE OF SECTION 9. COLORADO. % 59. ' ' The defendant induced the plain- tiff 's servant in charge of plaintiff's prem- ises to leave them, and go to defendant's assistance. During the servant's absence a fire was kindled upon or near the plain- tiff's premises, and was carried by a wind over his field, destroying his crop. Held, that neither the kindling of the fire nor the rising of the wind was occasioned by the servant's absence, and neither was the natural and legitimate sequence of such ab- sence." {CJark V. Wallace, 51 Col. 437, 439, 118 Pac. 973, 27 Ann. Cas. 349.) 51 60. ''A loaded car escaped from con- trol and ran down a declivity in defendant's coal mine, injuring plaintiff, an employee. The failure to prevent its escape was due to the defective condition of the stop-block, but its escape from the control of the driver, in the first instance, was attribu- table to the mutinous conduct of the mule drawing the car * * * * * if the appli- ance had been in good order the injury would not have occurred, it was held that niOXIMATE CAUSE. 29 Sec. 9. Colorado. tlie misconduct of the mole was not to be regarded as an eflicient intervening cause, and that tlie defendant's negligence in the matter of the stop-block was the proximate cause of the injury." {National Fuel Co. V. Green, 50 Col. 307, 115 Pac. 709.) ^61. "Proximate Cause" is that cause which in natural and continued sequence, unbroken by any efficient intervening cause, ]»roduced the result complained of, and witliout which that result would not have occurred." {Totvn of Lyons v. Watt, 43 Col. 238, 95 Pac. 949, 18 L. R. A. (N. S.) 1135.) ^ 62. ^ ' An alleged defect in the master 's appliances, which, if it existed, in no way contributed to the injury complained of, is not actionable ; and it is error to charge the jury that if the defect existed it was negli- gence." {Kent Mfg. Co. v. Zimmerman, 48 CoL 388, 110 Pac. 187.) 5[63. "Where an engineer and fireman, by the exercise of proper care, could have discovered an animal at a crossing and slacked the speed of the train in ample time to have prevented killing it, their negli- gence was the proximate cause of the kill- 30 DOCTRINE OF Sec. 9. Colorado. mg, and whether the owiier is guilty of contributory negligence in turning the ani- mal out on the highway in such close prox- imity to the crossing, is not involved. {Rio Grande Co. v. Boyd, 44 Col. 126, 96 Pac. 966.) Leading case : Blytlie v. Railroad, 15 Col. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Amer. State, 403. See Carlock v. Denver cC-c, Co., 55 Col. 146. PROXIMATE CAUSE. 31 SECTION 10. CONNKGTIVUT. If 64. ''The statutory liability * * * * of a town for injuries received from defects in a highway exists only when the defect alone is the proximate cause of the injury. If the negligence of plaintiff or of a third person concurs with the highway defect in producing the injury, there is no cause of action." {Place v. Sterling, 86 Conn. 506, 86 Atl 3.) 5[65. ''The so-called doctrine of last clear chance is not a newly discovered legal principal, limiting the operation of contributory negligence rule, but is merely a logical and inevitable corrollary of the long-accepted doctrine of actionable neg- ligence and contributory negligence. To furnish a basis for applying the doctrine of contributory negligence, there must have been a concurrence of negligent con- duct on the part of the injured person with that of the defendant. The negligence of the injured person must, furthermore, have been of such a character, and so related to the result, as to be properly considered an 32 DOCTRINE OF Sec. 10. Connecticut. efficient or proximate cause of it." {Nelir- ing V. Connecticut Co., 86 Conn. 109, 84 Atl. 301, 45 L. R. A. (N. S.) 896.) 5[66. "Negligence is the proximate cause of an injury only when the sequence of events is unbroken by any new and inter- vening cause, and when without it the in- jury would not have occurred; that is, it must be an efficient act of causation sepa- rated from its effect by no other act of causation." {Swayne v. Conn. Co., 86 Conn. 439, 85 Atl. 634.) 5[67. "Violation of a rule of his em- ployer will not preclude a servant from re- covery, unless it was the proximate cause of his injury." {Delinks v. N. Y. N. H. d H. R. Co., 85 Conn. 102, 81 Atl. 1036.) ^68. "The fact that plaintiff was in- jured while coasting in a highway in vio- lation of a city ordinance, does not neces- sarily and as a matter of law preclude him from recovering damages from a defendant whose negligence is alleged to have caused the injury. To have that effect it must also appear that such violation, and not the supervening negligence of defendant was PROXIMATE CAUSE. 33 Sec. 10. Connecticut. the proximate cause of the injury." {Far- rington v. Cheoponis, 84 Conn. 2, 78 Atl. G52.) ^69. "It is immaterial whether the al- leged negligence of the defendant has been established or not, provided the plaintiff's own negligence is a i)roximate cause of his injury." {Elliott v. N. Y. Etc., R. Co., 84 Conn. 444, 80 Atl. 283.) 1170. *'The fact that the plaintiff in an action for negligence has himself violated the law is inmiaterial and irrelevant, un- less a causal connection is shown between his illegal act or omission and the subse- quent injury for which he seeks to recover. ' ' {Case V. Clar'k, 83 Conn. 183, 76 Atl. 518.) Defined. 5171. ''The 'proximate cause' of an event, juridically considered, is only that which in a natural sequence, unbroken by any new and intervening cause, produces it, and without which the event would not have occurred ; for the law does not search for the more remote agencies by which an injury is brought about or made possible, 34 DOCTRINE OF Sec. 10. Connecticut. but holds the hist conscious agent in pro- ducing it responsible therefor." {Miner V. McNamara, 81 Conn. 690, 72 Atl. 138, 21 L. R. A. (N. S.) 477.) ^72. ''Negligence is only deemed con- tributory when it is a proximate cause of the injury." (Smith v. Conn. Ry. & Ltg. Co., 80 Conn. 268, 67 Atl. 888, 17 L. K A. (N. S.) 707.) % 73. Failure of master to inspect cable proximate cause of servant's injury, {Rin- cicottiv. O'Brien Contracting Co., 77 Conn. 617, 60 Atl. 115, 69 L. R. A. 936.) PROXIMATE CAUSE. 35 SECTION 11. DELAWARE. 1174. "To entitle the plaintiff to a re- covery, he must satisfy the jury by a preponderance, or greater weight of evi- dence, that the injuries complained of re- sulted from the negligence of the defend- ant, without any fault, on his part, which jjroximately entered into and contributed to his injuries." {Eaton v. Wilmington City Rij. Co., 1 Boyce (Del.) 435, 75 Atl. 369.) A Proper Instruction. ^ 75. ' ' The defendant can be held liable only for such negligence as constituted the proximate cause of the injuries complained of. * * * * * In order for the plaintiff in either of the cases before you to recover at all, it must be proved to your satisfac- tion that the defendant's negligence was the proximate cause of the injuries com- plained of. The plaintiff cannot recover in either case for the effects of tubercu- losis or any other disease contracted after the accident, unless it is satisfactorily 30 DOCTRINE OF Sec. 11. Delaware. shown to the jury that such disease was tlie natural and probable consequence of the defendant's negligence, nor can there be an}^ recovery for the effects of any dis- ease contracted before the accident unless the jury are clearly satisfied from the evi- dence that such disease was aggravated or increased by the negligence of the defend- ant, and even then recovery could be had only to the extent that such effects were so aggravated or increased." (Baldivin v. Peoples Ry. Co., 7 Penne (Deb) 383, 72 Atl. 979.) 5[ 76. ' ' Whose negligence was the proxi- mate cause of the injury complained of?" is a question which must be determined from the evidence, under all the facts and circumstances of the particular case." {Wil. City Ry. Co. v. White, GFenne. (Del.) 363, 66 Atl. 1009.) 51 77. The negligence of plaintiff will not defeat his action imless it was the jn'oxi- mate cause of the injury complained of. (Heinel v. Peoples Ry. 6 Penne (Del.) 428 67 Atl. 173.) % 78. ' ' If the negligence of the defend- ant was the proximate cause of the death PROXIMATE CAUSE. 37 Sec. 11. Delaicare. or injury, it is immaterial that the negli- gence of some third person may have in some way contributed to the accident." {NeaVs Admr. v. W. & N. C. R. Ry. 3 Penne, (Del.) 467, 53 Atl. 338.) 38 DOCTRINE OF SECTION 12. FLORIDA. 51 79. Evidence of proximate result. {A. C. L. R. Co. V. Whitney, 65 Fla. 72, 61 So. 179.) % 80. ' ' At the common law, in force in this state, except in the case of railroad em- ployees, where a servant is guilty of negli- gence that contributes proximately to his injury, he cannot hold the master liable for such injury." {Cornet Plios. Co. v. Jack- son, 65 Fla. 170, 61 So. 318.) ^81. ^'A proximate cause is one that directly causes, or contributes directly to causing the result, without any independent efficient cause intervening between the cause and the result of injury. The par- ticular injury sustained must be such as should have been contemplated as a natural and probable proximate result or conse- quence of the cause of negligence." {F. E. C. Ry. V. Wade, 53 Fla. 620, 43 So. 775.) ■ Leading cases : jC. & K. W. Ry. v. Pen. L. T. M. Co., 27 Fla. 1, 157, 9 So. 661, 17 L. R. A. 33; W. U. Tel. Co. v. Milton, 53 Fla. 485, 43 So. 495, 125 Amer. State, 1077. PROXIMATE CAUSE. 39 SECTION 13. GEORGIA. % 82. ' ' The question of proximate cause and of the exercise of ordinary care by the injured person are for the jury." {Logan V. lioije, 139 Ga. 589, 77 S. E. 809.) 1[83. Intervening cause. [Georgia R. & B. Co. V. Rives, 137 Ga. 376, 73 S. E. 645, 38L. E. A. (N. S.) 564.) 5[ 84. Proximate cause of injury held to be negligence of co-employee and not of master. {Frasher v. Smith tC- Kelly Co., 136 Ga. 18, 70 S. E. 792.) ^ 85. ' ' Where two acts of negligence con- cur in producing an injury, in the absence of either of which the injury would not have accurred, and both acts are chargeable to the same person, the doctrine of proxi- mate cause is not applicable." (County of Butts V. Hixon, 135 Ga. 26, 68 S. E. 786.) 5[86. The crime of adulter^^ for which a man was killed was not the proximate cause of death. {Surpeme Lodge K. of P. V. Crenshaw, 129 Ga. 195, 58 S. E. 628, 12 Ann. Cas. 307.) 40 DOCTRINE OF 8cc. 13. Georgia. 1[87. A well considered case. {Savannah Elec. Co. V. Wheeler, 128 Ga. 550, 58 S. E. 38, 10 L. R. A. (N. S.) 1176). 51 88. Passenger ejected from train for drunkenness was left in helpless condition where he was killed by another train with- out negligence on part of second train's crew. Proximate cause held to be negli- gence in leaving him in such place in his condition. {M. D. d S. B. Co. v. Moore, 125 Ga. 810, 54 S. E. 700.) 51 89. ''Negligence to be the proximate cause of an injury must be such that a per- son of ordinary caution and prudence would have foreseen that some injuiy would likely result therefrom, not that the specific in- jury would occur." {W. & A. R. Co. v. Bryant, 123 Ga. 77, 83, 51 S. E. 20.) {Mayor of Macon v. Dykes, 103 Ga. 848, 31 S. E. 443.) 51 90. An attempt to show that a cess pool generated malaria from which plain- tiff's husband died, and that negligence of defendant company was proximate cause failed. {Goodwin v. A. C. L. B. Co. 120 Ga. 747, 48 S. E. 139. I'KOXIMATiJ CAUSE. 41 Sec. 13. Georgia. ^91. '^To entitle a party to recover damages of a railroad company on accomit of the negligence of its agents, it should appear that the negligence was the natural and proximate cause of the injury; for, should it ai)i)ear that the negligence of the comi)any would not have damaged the party complaining, but for the interposition of a separate, independent agency, over which the railroad company neither had nor exercised control, then the party com- plaining cannot recover." {Beckham v. S. A. L. Rij., 127 Ga. 550, 56 S. E. 638, 12 L. R. A. (N. S.) 476) See Coast Line R. Co. v. Daniels, 8 Ga. App. 775, 70 S. E. 203. 42 DOCTRINE OF SECTION 14 IDAHO. ^ 92. The damages awarded must be the ''natural and proximate result" of the in- jury complained of. {Denheigh v. 0. W. R. S N. Co., 23 Idaho, 663, 132 Pac. 112.) 51 93. When it appears that the negli- gence of plaintiff was the proximate cause of his injury, he cannot recover. {Rippetol v. Feely, 20 Idaho, 619, 119 Pac. 465.) {Goure V. Storey, 17 Idaho 352, 105 Pacif. 794.) 5194. ''No one is liable for damages caused by the forces of nature, but he who wrongfully augments and accelerates those forces is liable for the damages caused by his wrongful acts." {Maslihurn v. St. Joe Imp. Co., 19 Idaho, 30, 113 Pacific, 92.) {Lamb v. Lacey, 16 Idaho, 664, 102 Pacific 378.) {Axtett v. N. P. R. Co., 9 Idaho, 392, 74 Pacific, 1075.) 5[ 95. ' ' Negligence on the part of a per- son which was not the proximate cause of his injury or death will not be a bar to his recovery," Proximate cause is matter for jury. (Philmer v. Boise Trac. Co., 14 Idaho, 327, 94 Pac. 432, 15 L. R. A. (N. S.) 254, 125 Amer. State, 161.) PROXIMATE CAUSE. 43 SECTION 15. ILLINOIS. % 96. "While the question of proximate cause is ordinarily one of fact to be deter- mined by the jury, yet it may, under certain conditions of the evidence, become a ques- tion of law for the court." {Devine v. Chicago, Etc., R. Co., 259, 111. 449, 102 N. E. 803.) ^ 97. Proximate cause matter of fact for juiy. {Tomasi v. DenJc Bros. C. d C. Co., 257 111. 70, 100 N. E. 353.) % 98. " If it can reasonably be concluded * * * that the accident would not probably have happened except for the failure of a railroad company to fence its tracks, it fol- lows that the neglect to fence is the proxi- mate cause of the accident, unless some other disconnected cause, which could not have been foreseen by the exercise of ordi- narv care, has intervened." {Heiting v. C. R. I. d P. R. Co., 252 111. 466, 96 N. E. 842.) 51 99. "If but for the negligence of a telegraph company in missending a tele- 44 DOCTRINE OF Sec. 15. Illinois. gram- a certain fire policy would have been cancelled before the insured property was destroyed by fire, the negligence of the tele- graph company is the proximate cause of the loss to the insurance company from the policy not being cancelled. ' ' {P-W Ins. Co. V. W. U. Tel. Co., 247 111. 84, 93 N. E. 134, 30 L. R. A. (N. S.) 1170.) 51100. Damage by fire started by de- fendant on his property matter for jury. {Nail V. Taylor, 247 111. 580, 93 N. E. 359.) Defined. 51 101. "The nearest independent cause which is adequate to produce and does bring about an accident is the proximate cause of the same and supersedes any re- mote cause." {Yeates v. I. C. R. Co., 241 111. 205, 89 N. E. 338.) 51 102. "If a negligent act does nothing more than furnish a condition by which an inimy is made possible, and such condi- tion, by the subsequent act of a third per- son, causes an injury, the two acts are not concurrent and the existence of the condi- tion is not the proximate cause of the in- PROXIMATE CAUSE. 45 Sec. 15. Illinois. jury." {Seith v. Com. Elec. Co., 241 111. 252, 89 N. E. 425, 24 L. R. A. (N. S.) 978.) ears that, notwithstanding the occurrence of the fire, the cotton would not have been burned by it had not the breaking of the train while it was being removed happened, so that, but for this fact, the cotton would have been saved. This (the breaking of the train) must therefore be held to be the proximate cause of the loss, and if it was the result of negligence, the carrier must answer for it." {Deming v. M. C. Co., 90 Tenn. 310, 353, 17 S. W. 99, 13 L. K. A. 518.) The above definition has been repeatedly lis DOCTRINE OF ^^c. Jf^. Tennessee. approved in Tennessee {Mayor of City of Tennessee v. F. Co., I'll Tenn. 107, 114.) 5[242. In an action brought to recover damages for wrongfully suing out an in- junction — not on the bond, but against the complainants, in the injunction suit, person- ally, it was held that the suing out of the injunction was not the proximate cause of the injury. {Haiukins v. Huhhell, 127 Tenn. 315, 154 S. W. 1146.) ^243. This court is inclined to the theory that after all ''to a sound judgment must be left each particular case. ' ' that is, that there can be no inflexible rule' for the application of the doctrine of proximate cause. {Chattanooga L. d- P. Co. v. Hodges, 109 Tenn. 331, 70 S. "W. 616, citing 1 Strob., 547, 47 Amer. Dec. 578, 7 Wall. 49.) Leading case: Railroad v. Kelly, 91 Tenn. 699, 20 S. W. 312, 17 L. E. A. 691, 30 Amer. State, 902. I'lJoXIMATK CAUSE. 119 SECTION 45. TEXAS. f 244. Wliere, by the neglect oi* (lci\-ii»l- ant's conductor to give a jjassenger a check showing lier right to pass over a connecting line, she was compelled to borrow money from a fellow passenger to pay her fare, in the absence of evidence that the con- ductor had reason to contemplate such re- sult as a probable conse([uence of his de- fault, damages due to her humiliation in having to so borrow money were, as a mat- ter of law, not recoverable; the question of proximate result could not be left to the jury. {Railroad v. Welch, 100 Tex. 118, 94 S. W. 333.) Defined. ^245. "Negligence, or an act not amounting to wanton wrong, is the proxi- mate cause of an injury which, in the light of attending circumstances, ought to have been foreseen as a natural and probable consequence of the negligence or wrongful act." ''The intervention of an independent 120 DOCTRINE OF ^cc. 45. Texas. agency, bringing about tlie result, does not necessarily render the original cause re- mote, but bears more directly, on the ques- tion whether the injury ought, under all the circumstances, to have been foreseen, and, where this latter fact appears, the original negligent act ought to be deemed actionable. ' ' The Test. The test is whether a reasonably pru- dent man, in view of all the facts, would have anticipated the result, not necessarily the precise actual injury, but some like in- jury, produced by similar intervening agencies." (Railroad v. Bigham, 90 Tex. 223, 38 S. W. 162.) % 246. ' ' If, subsequent to the original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote. The original wrongful or negligent act will not be regarded as the proximate cause, where any new agency, not within the reasonable contemplation of the original wrongdoer PROXIMATE CAUSE. 121 Sec. Ji5. Texas has intervened to brin<^ about the injury." {Scale V. Railroad, 05 Tex. 274.) ^1247. "A defendant is liable for in- juries to another when its negligence is merely a concurring and not the sole cause of the injuries." {Railroad, Etc. Co. v. Street, 57 Tex. C. P. 194.) 51 248. Damages which could not be rea- sonably anticii)ated as the probable result of an act or omission, cannot be held to have been i)roximately caused by such act or omission." {Railroad v. Reed, 50 Tex. C. P. 453.) ^[249. "if an accident occurs from two causes both due to negligence of different persons, but together the efficient cause, then all the persons whose acts contribute to the accident are liable for an injury resulting, and the negligence of one fur- nishes no excuse for the negligence of the other." {Railroad v. Edwards, 55 Tex. C. P. 543.) ^ 250. ' ' AVhere one was killed by a train while walking too close to a railway track, if he was negligent in choosing such place to walk instead of another which was safe 122 DOCTRINE OF Sec. 45. Texas there could be no issue as to such negli- gence being the proximate cause of his in- jury nor necessity to qualify, by submitting the question whether it was so." * * * * {Railroad v. Wall, 102 Tex. 362, 116 S. W. 1140.) ^251. Proximate cause of an injury is a mixed question of law and fact which should be submitted to the jury, and not one of law only, such as the Supreme Court could determine. {Railroad v. Johnson, 101 Tex. 422, 108 S. W. 964.) PROXIMATE CAUSE. 123 SECTION 4(J. UTAH. ^[252. ''Where plaintiff who was deliv- ering a parcel to an occupant of dcfeiKl- ant's apartment building became fright- ened at a horse standing in the rear of the building, and in endeavoring to avoid the horse was injured by falling into an open cellarway, defendant was not liable, as the unguarded cellarway was not the proxi- mate cause." {Anderson v. Bransford, 39 Utah 256, 116 Pac. 1023.) f 253. ' ' Where an act is such that a per- son in the exercise of ordinary care could have anticipated as likely to result in in- jury, then he is liable for an injury actually resulting from it, although he could not have anticipated the particular injury which did occur." {Stone v. Railroad, 32 Utah, 185, 89 Pac. 715.) 51 254. ' ' Where the plaintiff in a suit to recover damages for injuries shows by his own evidence that he was guilty of contri- butory negligence which was the proximate cause of such injuries, the defense is re- 124 DOCTRINE OF Sec. J,6. Utah. lieved from the burden of proving such neg- ligence, and the plaintiff cannot recover." [Silcoch V. Bnilroad, 22 Utah, 179.) ^255. ''Where the injured party was negligent in the first instance, such negli- gence will not defeat his action, if it be shown that the defendant might have avoided the injuiy by the exercise of ordi- nary care and reasonable prudence. As to whose negligence was the proximate cause of the accident is a question of fact for the jury." {Hall v. Railroad, 13 Utah, 243.) Leading case: Soule v. Weatherhy, 39 Utah, 580, 118 Pac. 833, 30 Ann. Cas. 75, PROXIMATE CAUSE. r27, SECTION 47. \ IJRMONT. % 256. ' ' TJie voluntary intoxication of a ))iM-s()u does not relieve liiui I'roin exorcis- ing the care I'eciiiircd ol' a soher man in the same circumstances, and so, if failure to exercise tiiat care contributes to the in- jury, he is guilty of contributory negligence and cannot recover for the concurrent neg- ligence of another." (Burleson v. M. L. ii: P. Co., 86 Vt. 492, 86 Atl. 745.) f 257. "Due caution means caution com- mensurate with existing liazard." {l^an Dijke V. Rij. Co., 84 Vt. ivi, 78 Atl. 958.) ^[258. *'One negligently starting a fire held liable for the consequent damages, though caused by the change in the direc- tion of the wind." {Ide v. Railroad, 83 Vt. 66, 74 Atl. 401.) 5[259. Failure of railroad telegraph operator to transmit report of departure of extra train to dispatcher held proximate cause of a collision between the extra and a regular train." {Mahoney v. Railroad, 78 Vt. 244, 62 Atl. 722.) 126 DOCTRINE OF Sec. 47. Vermont. 5[ 2G0. ' ' Negligence is a shortage of legal duty that causes injury." {Corhin v. Railroad, 78 Vt. 458, 63 Atl. 138.) ^261. Defendant's duty to keep bridge in repair, plaintiff, traveler upon the bridge at the time of accident, in the exercise of due care, and the insufficiency of the bridge must have been the proximate cause of the injury." {Mohus v. Waitsfield, 75 Vt. 122, 53 Atl. 775.) % 262. ' ' The report distinctly shows that the injury is to be attributed to two proxi- mate and concurring causes — the one being the insufficiency or defect in the highway, and the other the darkness of the night." ''It has been settled in this State that where the injuries sustained were caused in part by a defect in a highway and in part by a pure accident, or such an accident as could not have been prevented by ordinary care and prudence, the town will be liable." {Swift V. Neivherrij, 36 Vt. 355 357.) PROXIMATE CAUSE. 127 SECTION 48. \ Ih'fllS'lA. f 263. ''The plaiiilill' is entitled to re- cover all siK'h damages as are the natural and proximate results of the wrongful act com])lai]ied of * * * * * The rule is well established and uniroi-iiily enuneiated by the courts, but there is often difficulty in api)lying it to a particular case. The i)laiu- ti ff must show not only that he has sus- tained damages, but also show with reason- able certainty the extent of it, and it nmst ai)pear that such damage was the natural and proximate result of the injuiy. ' ' {IJiir- rus V. Ilines, 94 Va. 413, 416, 26 S. E. 875.) ^264. ''The law always refers an in- jury to the proximate, not to the remote cause. To warrant the finding that an act of mere negligence is the proximate cause of an injury, it must appear that the in- jury was the natural and probable conse- quence of the negligence, and that it ought to have been f orseen in the light of attend- ing circumstances." {Win free v. Jones, 104 Va. 39, 51 S. E. 153, 1 L. E. A. (N. S.) 201.) 128 DOCTRINE OF ^ec. ^S. Virgima. ant, the negligence in permitting the gas to escape is the proximate cause of the death, unless there was some other super- vening or responsible cause intervening be- tween such negligence and the resulting death. To be a supervening cause * * * it must so entirely supersede the defend- ant's negligence that it alone, without the defendant's negligence contributing there- to in the slightest degree, produces the in- jury. ' ' (City of Richmond v. Gay's Admr., 103 Va. 320, 49 S. E. 482.) Other leading cases : Standard Oil Co. v. Wakefield, 102 Va. 824, 47 S. E. 830; Fowlkes V. Railroad, 96 Va. 742, 32 S. E. 464; Lane Bros. Co. v. Barnard, 111 Va. 680, 69 S. E. 969; C. cC- 0. R. Co. v. Wills, 111 Va. 32, 68 S. E. 395; So. R. Co. v. Bailey, 110 Va. 833, 67 S. E. 365; Jacohy PROXIMATK CAUSE. VM See. JiH. Virginia. Co. V. Williams, 110 Va. 55, G5 S. E. 4i)l ; B. of T. Co. V. Cralle, 109 Va. 246, 63 S. E. 995, 1.T2 Amer. Stat<'. 917; ('. d- O. U. Co. v. Bell, Admr. of Paris, ill \'a. 41, 68 S. E. 398, 27L. K. A. (N. S.) 773.) 132 DOCTRINE OF SECTION 49. WASHINGTON. 5[270. ''Where the immediate cause of death was pleurisy with effusion, following an accident, the proximate cause of the death was the cause that produced the pleurisy with effusion." {Thompson v. Railroad, 71 Wash. 436, 128 Pac. 1070.) ^271. Negligence of defendant's fore- man in dropping a brick, proximate cause of death of plaintitf 's decedent. {Kolojf v. Railroad, 71 Wash. 543, 129 Pac. 398.) ^ 272. ' ' Failure to look back after leav- ing the curb, even if contributoiy negli- gence, does not preclude a recovery where the defendant, driving an automobile, could have seen the plaintiff and avoided the ac- cident if he had been running at a reason- able rate of sj^eed or sounded a horn." {Hillehrant v. Manz, 71 Wash. 250, 128 Pac. 892.) 51 273. Building permit- — owner of prop- erty — independent contractor — no staging over sidewalk as required by City ordi- nance one lawfully on sidewalk, injured by PROXIMATE CAUSK. 133 Krc. Jf9. Washitt/jton. railing- lirick I'ailiiic to construct staging l)roxiuiate cause of injury. (Frost man v. Stirraff, Etc., 05 Wasli. G(J8, 118 l»ac. 742.) ^[274. P>lack {lani|» in coal mine })roxi- nuite cause; ol' an injury i'roni falling rock, where jjIaintifT's lights were \n\t out by tlie black dani}). {Naleivaja v. N. I. Co., (J3 Wash. 391, 115 Pac 847.) ^ 275. ' ' Contributory negligence by third person is not a defense to an action for negligentl}^ causing an injur}- to the i)lain- tilf." {TJioresen v. Lumber Co., 73 Wash. 99, 132 Pac. 800.) % 276. Accident on an elevator being op- erated by an inexperienced person — i)roxi- mate cause negligence of the owner. {Atke- son V. Jackson, 72 Wash. 233, 130 Pac. 102.) % 277. Escaping electric current due to broken wire — negligence of company — proximate cause of injury. (Metz v. Pos- tal Tel Co., Etc., 72 Wash. 188, 130 Pac. 343.) ^278. Starting of locomotive without warning, held to be the proximate cause of injury to employee of the company. 134 DOCTRINE OF Sec. 49- Washington. {Alberg v. Campbell L. Co., 66 Wash. 84, 119 Pac. 6.) ^ 279. Damage by fire as result of carry- ing out an ordinance requiring building to be fumigated. Proximate cause held to be the ordinance and not the negligence of the officers. Assurance company not liable un- der its policy. {Hocking v. Assurance Co., 62 Wash. 73, 113 Pac. 259, 36 L. R. A. (N. S.) 1155.) % 280. Wliere an extraordinary flood in a river is turned aside by a boom and by reason thereof washes away the opposite bank, the owner of the boom is liable. The same cannot be excused under the plea that such flood is an act of God. {Kulinis v. Lewis River B. & L. Co., 51 Wash. 196, 98 Pac. 655.) Leading case: Wodnick v. Luna Park, 69 Wash. 638, 125 Pac. 941, 42 L. R. A. (N. S.) 638.) PROXIMATE CAUSE. 135 SECTION 50. WEST VIIiOINIA. f 281. ''A violation of a statute inhibit- ing the omjjloymcnt ol" i)oys under fourteen years of age in coal mines constitutes ac- tioiialilc negligence wliciicxcr that violation is the natural and pioxiinate cause of an injury." (Xorniau v. V.-P. Coal Co., 68 W. Va. 405, 69 S. E. 857, 31 L. R. A. (N. S.) 504.) 51 282. * ' In an action for damages in such case the jury have a right to regard the intoxication of the hushand as the proxi- mate cause of liis })hysical injury, and the injury to the wife's meails of sui)port as a natural sequence resulting from the un- lawful sale of intoxicating liciuor." ''The common law rule of proximate cause which obtains in other actions of tort does not apply to actions under sec- tion 26, chapter 32, Code 1906 * * *. [Duchivorth v. Stalnaker, 68 W. Va. 197, 69 S. E. 850.) CONTRIBUTOKY NEGLIGENCE. 51283. ''Negligence of a railroad com- pany in failing to stop its train long enough 136 DOCTRINE OF Sec. 50. West Virginia. at a station to permit passengers to alight will not absolve a passenger from negli- gence in attempting to alight from the train after it has again been put in motion. ' ' ''One is not bound to assume the risk of a known danger because he is directed to do so by another; he must think and act for himself, and if he relies upon another's judgment and does an act, contrary to his own sense of prudence, he is negligent." 5[284. ''In the present case the proxi- mate cause of the injury was the alighting from the moving train, and not the failure to stop the train * * * at the station." {Farley v. Railroad, 67 W. Va. 350, 67 S. E. 1116; 27 L. R. A. (N. S.) 1111.) 5[ 285. * * * < ' Not only the incompe- tency of the mine boss must be proved, but such incompetency must be shown to be the proximate cause of the injury or to have di recti y contributed thereto. ' ' ( Fuller V. Margaret M. Co., 64 W. Va. 437, 63 S. E. 206.) 5f 286. ' ' Where in an action * * * for negligently allowing fire to escape from premises of the defendant, the defense is i'ltoXIMATl-: CAUSK. 137 Hcc. 50. Wi st Virginin. that the loss was oecasiuued by a ^inldfii shift of the wind, it must be shown that the change of the wind was unusual and oxti-aoi'dinaiy, and sufh as in its na- ture not roasonal)le to ho oxj)0(.'tod." {Ma- haff'cij V. Lumber Co., (il \V. Va. 571, 56 S. k/8|»ini()ii lor llic I'liited States Supreme C^ourt iu The Majestic (IGO U. S. 375, 41 Law Ed. 1039) (piotes from «^ Kent's Com., l)age 597, ''The Act of God means 'inevita- ble accideut, without the intervention of man and public enemies" * * *, and again, 3 Kent's Com., page 21(5, that "l*erils of the sea denote natural accidents peculiar to that element, which do not happen by the intervention of man, nor are to be pre- vented by human i)rudence." The Chief Justice then adds: "The words 'perils of the sea' may, indeed, have grown to have a broader signification than 'the act of God.'" 11305. Many courts hold that "Acts of God," "inevitable accidents," "perils of the sea," and "dangers of the river" are analogous terms, and import such excuses as will relieve a common carrier from lia- bility for loss of goods received by him. That they will relieve him from liability where they are absolutely free from human 150 DOCTRINE OF Sec. 55. Inevitable Accident. agency, and negliegnce of commission and omission, there can by no doubt, except in cases where he has obligated himself to de- liver the goods notwithstanding these things. 5[306. A case of inevitable accident, Kenova Trans. Co. v. Monongahela, Etc. Co., 56 W. Va. 70, 48 S. E. 844. PROXIMATK CAUSE. 151 SECTION 56. PURE ACCIDENT. 51 307. I*ure accidents or sim})le acci- dents have not yet been eliminated from the facts of liuman experience. {Conley v. Exp. Co., 87 Me. 352, 32 Atl. 0G5.) 51308. ''A pure accident, as recognized by law, is something that occurs after the exercise of the care required by law to prevent its occurrence," {U. S. v. Boyd, 45 Fed. 851.) % 309. ' ' In the discussion of questions of liability for negligence, the term 'pure acci- dent' or 'simple accident' is uniformly em- ployed in contradistinction to 'culpable negligence,' to indicate the absence of any legal liability. A 'purely accidental' occur- rence may cause damage without legal fault on the part of any one. ' ' {Fidel, d Cas. Co. V. Cutts, 95 Me. 162, 49 Atl. 673. % 310. If in doing a lawful act, using due care and all proper precautions neecssaiy to the exigency of the case, to avoid hurt to others, one accidentally does injury to 152 DOCTRINE OF Sec. 56. /'lire Acoident. another, it is the result of pure accident, involuntary, unintentional, and for it no action lies. (Broivn v. Kendall, 6 Cush. (Mass.) 292.) 51311. ''The definition of 'accident' gen- erally assented to is an event happening without any human agency, or, if happen- ing through human agency, an event which, under the circumstances, is unusual, and not expected, to the person to whom it hap- pens." {Carnes v. Iowa S. F. M. Assn., 106 Iowa 281, 68 Amer. State 306.) 51 312. In law a j^ure accident is some- thing that occurs after the exercise of such care as the law requires under the circum- stances. {U. S. V. Botjd, 45 Fed. 851.) % 313. A pure accident is that which hap- pens unexpectedly and without fault. {Os- borne V. Van Dyke, 113 Iowa 557, 85 N. W. 784.) I'UttXlMATK CAT'SE. 153 SECTION 57. NEGLKJKXC^E— I'JioXI.MATH CAl'SE. ^314. "Xoi^liii:('ii('{* is tlu» failure to do wliat a i-easonablo aud prudent person would ordinarily have done under the cir- cumstances of the situation, or doing what sucli a person under the existinii: circum- stances would not have done." The essence of the fault may lie in omis- sion as well as in commission, and the duty is dictated and measured by the exigency of each i)articular case. Judgments which have to be formed in emergencies, and on the spot are not to be held to the same strict account as those which are formed after time for due deliberation. {B. t(- P. By. V. Jones, 95 U. S. 441, 24 Law Ed. 506; Bailroad Co. v. Broioi, 229 U. S. 317; The Germanic, 196 U. S. 589; Mason v. Post, 105 Va. 494, 54 S. E. 311.) 51315. Negligence on the part of plain- tiff and defendant is the same, but that of the former is called contributory negli- gence. An act of negligence by commission or 154 DOCTRINE OF Sec. 57. Negligence: Proximate Cause. omission is not necessarily actionable be- cause it is negligent. To render it action- able it must be the proximate cause of an injury. Injury alone is not sufficient to support an action arising from the alleged negligence of defendant. There must be concurrence of wrong and injury. The re- lation of cause and effect must be estab- lished between the wrong and the injury, and that the proximate and not a remote cause. {Lane Bros. Co. v. Barnard, 111 Va. 680, 69 S. E. 969; Cumb. Etc., R. Co. v. State, 73 Md. 74.) 5[316. Actionable negligence consists in a breach, or non-performance, of some duty which the party charged with the negli- gent act or omission owed to the one suf- fering loss or damage thereby. In the action of assumpsit employed to recover damages for breach of contract (not un- der seal at common law), the proximate cause of the damage is the breach of con- tract, and the recovery in damages is the amount due, with interest and costs. {Rod- dy V. Railroad, 104 Mo. 234, 15 S. W. 1112, 24 Amer. State 333, 12 L. R. A. 746.) lUtOXIMATE CAUSE. 155 »S'(C. .57. Neffligencc: I'roxinmlc Cause. f 317. Plaintiffs purclia.sed tickets entit- ling them to conveyance from W. to H. C. The train did not go to 11. C, and plain- tiffs were taken to E., several miles further from their destination than IT. (\, and in- creased their walking distance by two or three miles. Defendant thus committed a breach of contract in failing to carry plain- tiffs to H, C. This breach of contract was the proximate cause of loss and of the in- convenience suffered by plaintiffs in being com})elled to walk that additional distance on a dark wet night, and for this a recovery was given; but one i)laintiff", the wife, it was alleged, took cold, from her exposure to the wet on that night, became ill in health, and incurred expense for medical attendance upon her, and for this recovery was refused as being too remote. The Court then laid down the following rule: "To entitle a person to damages by reason of a breach of contract, the injury for which compensation is asked should be one that may be fairly taken to have been contemplated by the parties as the possi- ble result of the breach of contract." ' ' To illustrate : Suppose that a passen- 156 DOCTRINE OF Sec. 57. Negligence : Proximate Cause. ger is pnt out at a wrong station on a wet night and obliged to walk a considerable distance in tlie rain, catching a violent cold which ends in fever, and the passenger is laid up for a couple of months, and loses through his illness the offer of an employ- ment which would have brought him a handsome salary." He may recover for the breach of contract, the inconvenience of the walk in the rain, or the expense of some other means of conveyance, all of which might reasonably be contemplated by the parties at the time of the breach, but the fever, and loss of proffered position are too remote. {Hohhs v. London So. Ry., Law R. 10 Q. B. Ill ; Murdoch v. Railroad, 133 Mass. 15.) % 318. The rule is the same in contract and in tort, and the result must be the natural consequence of the act, and one which could have been foreseen in the light of attending circumstances, unless the act is one of wanton wrong. (Ehrgott v. Mayor, Etc., 96 N. Y. 264; Railroad v. Kel- logg, 94 U. S. 469.) rUoXIMATlO CAUSE. 157 Sec. 57. NcgUgcncc: PrOdimatc Cnuao. Doctrine Restated. 5[ 319. Excluding acts of wanton wrong, actionable negligoiicc is coiiiiionnded as follows : 1. A negligent act of coiiniiission or omis- sion by the defendant. 2. Conseciuent resulting injury to plain- titf of which the negligent act was the i)rox- imate cause. 3. That the injury, or some injury, ought to reasonably have been foreseen in the light of attending circumstances. To be excluded from the compound : 1. Contributory negligence amounting to a proximate cause. 2. Independent intervening efficient causes between the defendant's negligence and plaintiff's injury. 15S DOCTRINE OF SECTION 58. PROXIMATE CAUSE DEFINED AND ANALYZED. WiTHiisr THE Law op Negligence. % 320. The proximate cause of an injury is the efficient and dominant cause which acts directly to produce the effect, or sets in operation another cause, or other causes, not entirely independent of itself, which naturally and reasonably, in unbroken se- quence, results in producing the effect as a consequence of the first or primary cause, without which it would not have occurred. Actionable. ^321. To be actionable, the proximate cause must have been such as a person of ordinary intelligence and prudence ought to have foreseen that it might naturally and probably produce an injurious effect on some person or thing, but not neces- sarily the one which it did produce. Intervening Cause. 51322. If, subsequent to the original proximate cause, a new efficient cause in- TROXIMATi: TAUSE. 159 See. 58. Proximate Cause Defined, Etc. tervene, to effect the injury, having its origin independent of tlie original cause, or, having its origin in the original cause, but which could not reasonably have been foreseen, by a person of ordinary intelli- gence and prudence, as a natural and prob- able result thereof, it supersedes the origi- nal cause, breaks the connection between the original cause and the effect, and be- comes the proximate cause of the injury, rendering the original i»roximate cause remote. Ordinary Intelligence. 5f 323. It will be observed that, 'instead * * * of saying that the liability for negli- gence should be co-extensivo with the judg- ment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a re- gard to caution such as a man of ordinaiy prudence would observe." (3 Bing. New Cases, 468.) ''Natural^' and '* Probable." ^324. Effects which are only 230ssible are not included among those that are 160 DOCTRINE OF Sec. 58. Proximate Cause Defined, Etc. natural and probable. Effects which are only possible may never happen, but those which are natural or probable are those which do happen , according to the nature of things, and with such frequency or regu- larity as to become a matter of definite in- ference, and in the light of surrounding circumstances ought to be foreseen by a person of ordinary intelligence and pru- dence as likely to follow his act as effect follows cause. The natural consequence of an act is that which ordinarily follows it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. COKOLLARY. 51325. AVhere one willfully injures an- other, the doctrine of contributory negli- gence does not apply, because the act is not negligent. Where one sees another who has negligently put himself in peril, and injures him, without the use of ordinary care to avert the injury, he is not only negligent, but his act is akin to willfulness and the same rule applies. The party who has the last clear chance to avoid an in- runx I. M All : CAUSE. n;i Sec. iJS. I'lddimalr Cause Defined, Etc. jury and fails is not excnsod l)y the negli- gence of any one else. His negligence, and not that of the one first in fault, is tlie ])rox- iniate cause of the Iiijiiiy. Plaintiff who has received an injury oc- casioned by the negligence of defendant, Imt who could have avoided it by ordinary care on his part, cannot recover damages therefor, although the defendant ought to liave discovered, but did not discover, his l)eril in time to have prevented the injury, where plaintiff's negligence continued up to the moment of the injury, and where the exercise of reasonable care before that time would have revealed his danger and enabled him to Imve escaped by his own effort. [Di/erson v. Railroad, 74 Kan. 528, 87 Pac. 680. Distinguished by Himmel- u-nght V. Baker, 82 Kan. 569, 10*9 Pac. 178; Cons. B. Co. V. Doijlc, 102 Ya. 399, 403, 46 S. E. 390; Richmond Tr. Co. v. Martin, 102 Va. 209, 45 S. E. 886.) 51 326. Plaintiff''s negligence, to be the proximate cause, must continue to the time of the injury, or to the point where after- ward it is impossible by ordinaiy care to prevent it. It is defendant's duty, not- 162 DOCTRINE OF Sec. 58. Proximate Caxisc Defined, Etc. withstanding plaintiff's negligence, to ob- serve that degree of care required by the doctrine of last clear chance where he knew, or might have known by the exercise of ordinary care, the plaintiff's peril. {Edge V. Railroad, 153 N. C. 212, 69 S. E. 74.) 51 327. The doctrine of last clear chance only applies when defendant's negligence is subsequent to plaintiff's, and it does not apply where their negligence is concurrent at the time of the injury. {Green v. Rail- road, 143 Cal. 31, 76 Pacif. 719, 101 Amer. State 68.) rnDxrMATE cause. if;3 SECTION 59. PROXIMATE CAUSE CHANGES. If 328. The diflieulty in applying the doc- trine oi' proximate cause arises in part from the fact that the law of cause and effect must be established between the act comi)lained of and the effect or injuiy sus- tained ; and that an eff'ect, as soon as pro- duced, may itself become a cause producing another effect, and that effect in turn be- come the cause of another effect, tlius form- ing a chain of links that were first effects, or results of causes, and then instantly be- came causes themselves by which the final effect or injury is consummated. ^329. (a) Where a locomotive, coupled to a train of an hundred cars, more or less loosely coupled together, is gently started, the car couplings are tested one by one with a severe jerk until ninety-nine have been found sufficient to haul all behind them, but the one hundredth coupling breaks, leaving the car behind. The proximate cause of the break is not the car next in front of the break, but the starting of the locomo- 164 DOCTRINE OF Sec. 59. Proximate Cause Changes. tive. That is the cause without which tlie coupling would not have broken. This cou- 1)1 ing may have been defective, but for the force applied it would not have broken. Thus far no injury has been done, and no complaint made. 51330. (b) The car, thus severed from the train, is a caboose, carrying the con- ductor. It runs back down the track, turns over, and injures him. The proximate cause of his injury is not the starting of the locomotive, but the breaking of the coupling. 51 331. (c) Where it appears that the ca- boose would have stopped on the track and no injury have come of it, but for the fact that a switch was open which turned the caboose upon a side track which it followed to the end and down an embankment, doing the injury. Here the proximate cause shifts to the open switch, the cause with- out wliicli the injury would not have oc- curred. 5[332. (d) The caboose was well equip- ped with hand brakes with which the con- ductor could easily have stopped the car, I'KoXI.MA ri-; CAUSE. lO.") >SV'f. 59. Proximate Cause Chunycs but he neglected to do so. His negligent omission hecoines the i)roxiinate cause of his injury and lie cannot therefore recover, though the railroad conii)any may have been negligent in the use of an insnfficient cou})ling, and in having an oi)en switch. Though defen(hint may have been negli- gent in the first instance, yet if plaintitf's negligence contributes proximately to his injury lie cannot recover. {TJie 1>. *(• P. Ry. V. Jones, 95 U. S. 439, 24 Law Ed. 506; BaUroad v. Paris, 111 Va. 41, 08 S. E. 398; 27 L. E. A. (N. S.) 773.) 166 DOCTRINE OF SECTION 60. ''LAST CLEAR CHANCE." 51 333. In the beginning it was believed, and held by the courts, that where plaintiff and defendant were both guilty of negli- gence, resulting in injury to plaintiff, he could not recover. Human transactions, and the development of finer discrimina- tion, and sense of justice evolved an ex- ception to that rule. It would be difficult to trace this exception to its origin. It seems to have been clearly recognized as part of the common law of England by Lord Ellenborough in the case of Butter- field v. Forrester, 11 East 60, decided April 22, 1809, in which the Lord Chief Justice said : "A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not himself use common and ordinarj^ caution to be in the right. * * * One person being in fault will not dispense with another's using ordinary care for him- self." ^ 334. In the case of Bridge v. Railroad, 3 Meeson & Welsby's Rep. 244, 247, A. D. PROXIMATE CAUSE. 167 Sec. 60. Last Clear Chance. 1837, the Court of Exchequer says: **The rule of hiw is laid down with perfect cor- rectness in the case of Biitterfield v. For- rester." % 335. Still later, in the year 1842, in the case of Davies v. Mann, 10 M. & W.'s Rep. 545, following- the same rule, the trial court instructed the jury, "That though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travel- ing along it, might be illegal, still, if the proximate cause of the injury was attrib- table to the want of })roper conduct on tlie part of the driver of the wagon, the action was maintainable against the de- fendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff." The jury so found for the plaintiff, and the finding was sustained. 51336. This doctrine was now so well established that it came to be called and known as "The rule in Davies v. Mann," 168 DOCTEINE OF Sec. 60. Last Clear Chance. and it is still so called in late text books on the law of negligence. However, within the last three decades a new name — "Last Clear Chance'' — for this doctrine has come into general use by the courts. The rule presupposes negligence on the part of both plaintiff and defendant, the negligence of plaintiff", preceding that of defendant. Discovered Peril. % 337. Where the plaintiff has negligent- ly imperiled his person or property to in- jury at the hands of the defendant, the rule is in esse as to him. If the injury come from defendant without negligence on his part, the rule does not apply; but if the defendant has discovered the peril, or had such opportunity as would have enabled a person of ordinary care and prudence to have discovered it, though not discovered by him, the rule is in esse as to him also. If, after the discovery, or such opportunity of discovery, of the peril by the defendant, it is possible by due care to avoid the in- jury he must do so, or be guilty of negli- gence, and liable for the injury, provided, however, that where the plaintiff's negli- I'llOXIMATi: r.VT'SE. ICO Her. GO. Last Clear Chame. geiK'o c'OTitiiuu's II]) to the moment of the in- jury, and wlicic the exei-cise of reasonable carci l»y liiiii hcfoic flial liiiic would liave revealed liis danger to liim, and enabled liim to have avoided the injury by his own effort, the defendant will not be liable. See ante 1|325, and Sinitli v. IxaUroad, 58 Ore- gon L>-J, WW Pacil". 41, lM; Ann. Cas. 434. ^1 338. This principle is thoroughly well established in this country by many de- cisions of the Supreme Court of the United States, and by the courts of last resort in many, if not in all, of the states. The fol- lowing instruction, ai)proved by the United States Supreme Uourt, in Inland and S. C. Co. V. Tolson, 139 U. S. 551, 558, 35 Law Ed. 270, 272, is directly in point: * * * "Although the rule is that, even if the de- fendant be shown to have been guiltj^ of negligence, the plaintitf cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the acci- dent, yet the contributory negligence on his part would not exonerate the defendant, and disentitle the phiintiff from recovering, if it be shown that the defendant might, 170 DOCTRINE OF Sec. 60. Last Clear Chance. by the exercise of reasonable care and pru- dence, have avoided the consequence of the plaintiff 's negligence. ' ' ^ 339. Applying the law as laid down by the Virginia Court, in Backus v. Norfolk d Atl. Ter. Co., 112 Va. 292, 71 S. E. 528, and Roanoke Ry. Co. v. Carroll, 112 Va. 598, 72 S. E, 125, the driver of an automo- bile, street car, locomotive, or the like, ordi- narily rests under no obligation to stop his machine merely because he sees a person approaching the track in front, especially if that person be a footman, without any- thing apparent about him to admonish the driver that he is not able to protect himself. The driver may assume that such person will stop and wait for the machine to pass, and not attempt to cross so immediately in front of it as to come in contact with the machine. A pedestrian can stop instantly, but the momentum of such machine renders it less easy of control. See Bassford, Admr. v. Railroad, 70 W. Va. 280, 73 S. E. 926. ^340. ''The doctrine of the Mast clear chance' applies, notwithstanding the con- PROXIMATE CAUSE. 171 Sec. 60. Last Clear Chance. tributoiy negligence of a plaintiff, where the defendant knows, or by the exercise of ordinary care ought to know, of plaintiff's danger, and it is obvious that lie cannot extricate himself from it, and fails to do something which it has i)ower to do to avoid the injur)^; or when the plaintiff is in some position of danger from a threatened con- tact with some agency under the control of the defendant, when the plaintiff' cannot, and the defendant can, prevent the injury. The plaintiff must show that at some time, in view of the entire situation, including his own negligence, the defendant was there- after culpably negligent and that such negligence was the latest in succession of causes. In such case the plaintiff's negli- gence is not the proximate cause of the injury. But this doctrine has no applica- tion to a case where both parties are equal- ly guilty of an identical duty, the conse- quences of which continue on the part of both to the moment of the injury, and prox- imately contribute thereto." So. Ry. Co. V. Bailey, 110 Va. 833, 67 S. E. 365, ap- proved in 112 Va. 604, 113 Va. 337, 74 S. E. 208. 172 DOCTRINE OF Sec. 60. Last Clear Chance. ^341. ''If plaintife is giulty of negli- gence which might have produced his in- jury, but before the injury actually results the defendant is guilty of negligence which is the immediate cause of the injury, the negligence of defendant becomes, in law, the sole proximate cause of the injury, even though no injury could have resulted to plaintiff if he had not been originally negli- gent. The negligence of defendant super- vening between the original negligence of plaintiff and the happening of the injury, destroys the legal force of plaintiff's negli- gence as a contributory cause to the in- jury." Reidell v. Trac. Co., 69 W. Va. 18, 71 S. E. 174, approving 17 W. Va. 190. 51342. "If the railroad company's em- ployees knew of i3laintiff's danger at a crossing in time to have avoided injuring him by exercising reasonable care, the com- pany would be liable for their failure to do so, under the last chance doctrine, though plaintiff was negligent in putting himself in a dangerous position, and negli- gently remained there down to the time of the accident; it not being essential, as a rule, that plaintiff's negligence shall have PROXIMATK CAUSE. 173 Hcc. 00. Ltixt Clrar Chnncc. ceased before the accident, in order to re- cover under that doctrine. * * * If both the i)laintiff and defendant could liave prevented the accident, but neglected to do so, their negligence was concurrent, and the last chance doctrine does not [i])})!}'. " Briiggeman v. Railroad, 147 Iowa 187, 123 N. W. 1007, 21] Ann. Cas. 87G. 5f343. "lie who has the last clear chance to avert an iiijurv, notwithstanding the pre- vious negligence of the injured party, is solely responsible for such injury resulting from his failure to exercise ordinary care." Fichctt V. Railroad, 117 N. C. 616, 23 S. E. 264, 30 L. R. A. 257, 53 Amer. State 611. INDEX Ucfi rciirt .s (in la ,Si4. may excuse fmm legal duty, 'ui, ^21)<>. Actionaliie n«';,'litrence, ;">, Ki, !.'(;, L'S, 3s, 4S, 57. Adultery — killing for, l.'>, 'IstJ. Alabama, 5. Alienation of aflection, is, *'l.'{t;. Arizona, ♦>. Arkansas, 7. Assumption of risk and contributory neiilltjeiice di> tinsulshed, 2, IJS. Automobile ca.ses, is, 24, 45). Bite of poisonous insect. 10, If 145. Black damp, 49, 11274. Blood poisoning, 19, 11145. Breach of contract, 3, 1119. Bridge— defective, 47, 11261, 12S. Building i)ermit — staging sidewalk. 49, 1I27:>. California, 8. Carrier's refusal to deliver, IS, i;i3r>. (.'ase of inevitable accident, 5.'>, 1I3()(;. Cause and effect, 22, 1[154. Cause and effect — legal relation. 5. ii42. Cess pool — malaria, 13, 1190. Children — age — negligence, 5, 23, 1137. (175) 176 INDEX City — street obstruction, 35. Coal mine, 9, 160. Coal mine — black damp, 49, 1127-t. Collision of vessels at sea, 55, 11300. Colorado, 9. Connecticut, 10. Cow case, 5, ^44. Concurrent causes, 7, 13, 23, 25, 26, 40, 41, 45, 47. Contracts, 1, TI5. Contributory negligence, 2, 5, 6, 10, 14, 10, 17, 21, i'ls, 29, 30, 45, 46, 48, 49, 50, 52. when no defense 5, 1[41. Creator of danger, responsible, 20, T[149. Criminal act, 29, 58, 1|186, 11325. Dams, 1, 20, 114, P47. Damages by railroad, 9. recoverable, 45, 40, 48. Dangers of the rivers, 55. Death from liquor. 37, 11125. Death from hemorrhage, 32, 11194. Deceit, 36, 11208. Defective machinery, 8, 9. Delaware, 11. Development of disease, 4, 1125. Discovered peril, GO, 11337. Disease caused by injury, 49, 11270. hastened by negligence, 4, 1125. District of Columbia, 4. Dog — excited by abuse, 31. wrongful conduct, 23. Dominant, efficient cause, 3. Drugs— Sale of, 29, 11186, 11187. Drunkenness, 13, 42, 47. Due caution. 47, 11257. INDEX 177 Klt'ctiieity, 10, 4'J, 11121, •"277. Klevator cases, 4, 1(5. Emergency, 2, 1!7. PhiglaiKl, 1. Essence of negligence, 21, 57. •'ini. 314. Evidence, 11, 12. biirth'ii of imxtf, 17. 51. *2"^*>. Explosives sold tn rliildicii, 2i$. i;iG3. Express Co. — stolen package, IS, 11134. Extent of responsiliiiity, 5, 1135. Ealse certiiicate of acknowledgement, 7. '52. Fellow servant's negligence, 4. Fine and imprisonment, KJ, Ulls. Fire cases, 32, 30, 37, 47. 40, 50. by explosion. 2. lill. from locomotive, 34, 112tiit. in populous city, 31. effected by wind, 0, T.59. started on one's own property. 15. HKtO. Fire Co. hindered by cutting liose. 7, 1!54. Flood— boom— , 49, 1f280. Florida, 12. Forces of nature accelerated. 14. 1194. Cas— escaping. 22. 4S. 11155. 269. Georgia. 13. Hazi\rdous and extra hazardous, 27, 1il7s. Highway, 1, 42, 11236. Horse cases, 23, 24, 25. 32, 40. 41, 46. Ice— fall on. 37. T215. Idaho, 14. Illinois, 15, Indiana, 16 Inevitable accident defined, 55, 11300. Infant, employment of, 29, 40, 1184, 226. Immediate and proximate, 30, 11190. 178 INDEX Iiijuuftioii, 44, 111241]. Injured while violatiiij; ordinamr. 1<>, ^bS. Injui'.v jireciiiitated delerium tremens. 84, 1[197. Instruction. 11, 30. 42. 51. Insurance against fire, 2, Ull. Intervening cause, 2, 3, 13, 15, 10, 41, 45, 5\ Intoxication, 43. 50, 11239, 282. li>^\a. 17. Kansas, is. KentuclvV. 19. l^andlord, 25. Last clear chance. 5, 8, 10, 38, 39, 58, 00. Locomotive, 49. Louisiana. '20. Maine 21. Malicious act. 1, 58, T16, 325. Maryland. 22. Massachusetts, 23. Master and servant, 5. 10. 17. 23, 27, 38, 39, 42, 51. Michigan, 24. Mines, 50, 11281. Minnesota, 25. Mississippi, 2(5. Missouri, 27. Montana, 2S. Mule — proximate cause, 15, 1(103. Natural and prohable result, 3, 58, 1114. 324. Natural and proximate result, 14, 1192. Nebraska, 29. Negligence defined, 47, 50, 11200, not necessarily actionable, 57, 11315. of plaintiff and defendant the same, 57. of plaintiff to be proximate cause, 58, 11320. in contract and tort the same, 57, 1(318. INDEX 179 <'!Mis(' ;iii. ."{1. fliiid person. 11, *;7S. iniiUiii;: injiir.v possihle, l.">. • Hcj. I'ellow seivjinl. 1, !!li7. (lint riltutor.v, lo. 1i7'J. pnixinnile caiist'. 10. 11. .">7. ."iS. not presunH'd. S. f'tCt. mixed tpieslion. '•>. '*-. rule for rentvery <»t" d;iniiiKes. 7i~, *"M1. docfrin*' restated. 07. '"•i^*^■ Nevacla, 30. New llaiupsbire. .'M. New Jiidependenf cause, .'i, 5s. *'14. 'A2\l. New Jersey, 'S^. New Mexico, .*i3. New York, 34. North Carolina. .Ho. North I>akato. 'Ml Ohio. ;{7. Oklahoma, 3s. Orrlinary care detinoil, 0. 1147. Oregon, 39. Passenger ejected, 13, USS. Paying out money, 42. PeiMisylvania, 40. Perils of the sea, 55. i'oison sold without label, 17, 1il27. Prior and subsequent negligence, 21, 11152. I'roximate cause defined, 3, 6, 9, 10, 12, 13, 15, 10. 19. 22, 25, 27, 31, 35, 39, 40, 43, 44. 45, 58. Proximate cause defined and analyzed, 58. 180 INDEX I'roxiniMl',' CMiise only regarded, 'M, 43, 4S. prereiiuisites, 4S, 11266. test, 3, 15, 16, 23, 45. question of fiict, 3, 4, 5, IS. que.stion of law, 15, ]6, 10, 36, 37, 45, 48. changes, illustration, 5!>. Pure accident, 56. Railroad : crossings, 35, 1|2U5. extra train, 47, TI259. failure to stop at station, 42, 50, 11235, 2S4. liand car, 17, 11126. recovery from, 13. 115)1. torpedo, 37, 1(213. unsafe car, 33. Rainfall and cloudbursts, 54, 11299. Real estate agent, 18, 23, 11140, 1.59. Reasonable anticipation, 51, 1[289. Remote cause, 43, 11238, 240. Rhode Island. 41. Rule in Davies v. Mann, 60, 11336. Several proximate causes, 17, 34. Simple tools. 27, 11177. Solely, equal to proximate, 6. South Carolina, 42. South Dakota, 43. Squib case, 1. Statutory liability, 10. Storm— act of God, 20. Street car collision — act of God. 53. Surgeon's liability, 21, K152. Tennessee, 44. Te.st of proximate cause, 3, HIS. Texas, 45. INDEX 181 Thoughtless inattention, I'l, 11151. Unhrokeii coiine('tion--c!iiisf jind effect, 2. United States, 2. United Stiitcs <\ < '. A.. .:. rtiih, 4G. Veudoi' with ;nid uilliuiil kimwh'djje, 2, I'll). Vermont, 47. Violation of slatiitf. :;, ."). is. .",ti. Virginia, 48. \'iH major, 'u'>. Wasliington, V^. Water Company case. 2ti. * \~7>. Weot Vir^'inia, 50. WLsconsiu, 51. Wyoming, 52. AA 000 855 839 7 UNIVERSITY OF C;ALIFORMA LIBRARY Los Angeles This book is DUE on the last date stamped below. WAY 15 i9/5 Law Librai7 Rec'd FEB 2 2 19RQ irm L9-Series 4939