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ants' servants, in not seeing the land-slide, and stopping the train
before reaching it. the proximate cause of the destruction of the
plaintiff's property? We need not enter into an extended discussion
of the delicate questions suggested by this inquiry. That has been
done so fully in two of the cases cited as to render it unnecessary.
A man's responsibility for his negligence and that of his servants
must end somewhere. There is a possibility of carrying an admit-
tedly correct principle too far. It may be extended so as to reach
the rednctio ad absurdum. so far as it applies to the practical busi-
ness of life. We think this difficulty may be avoided by adhering


to the principle substantially recognized in The Railroad Company.
V. Kerr, and The Railroad Company v. Hope, supra, that in deter-
mining- what is proximate cause, the true rule is that the injury
must be the natural and probable c<jnscquence of the negligence —
such a consequence as, under the surrounding circumstances of the
case, might and ought to have been foreseen by the wrongdoer as
likely to flow from his act. This is not a limitation of the maxim
causa proxi}na noii rcnioia spectatur: it only affects its application.
There may be cases to which such a rule would not apply, but this
certainly is not one. It would be unreasonable to hold that the
engineer of the train could have anticipated the burning of the
plaintiff's property as a consequence likely to flow from his negli-
gence in not looking out and seeing the land-slide. The obstruc-
tion itself was unexpected. An engine had passed along within
ten minutes, with a clear track. But the obstruction was there,
and the tender struck it. The probable consequences of the col-
lision, such as the engineer would have a right to oxpect, would be
the throwing of the engine and a portion of the train off the track.
Was he to anticipate the bursting of the oil-tanks ; the oil taking
fire ; the burning oil running into and being carried down the stream ;
and the sudden rising of the waters of the stream, by means of
which, in part at least, the burning oil set fire to the plaintiff's build-
ing? This would be a severe rule to apply, and might have made
the defendants responsible for the destruction of property for mile^
.down Oil creek. The water was an intervening agent, that carried
the fire, just as the air carried the sparks in the case of the Rail-
road Company v. Kerr. It is manifest that the negligence was the
remote and not the proximate cause of the injury to the plaintiff's
building. The learned judge ruled the case upon sound principles,
and his judgment is affirmed.^*

'■Contra: Kuhn v. Jewel t, 32 N. J. Eq. 647 (1880), burning oil carried
h\r Stream to plaintiff's property — see especiallv, Van Fleet, V. C. pp. 550, 551,
and Brennan V. Cumberland, 29 D. C. App. 544 (1907).

Accord: Chicago, Etc. R. R. v. Elliott, 55 Fed. 949: 5 C. C. A. 347 (C. C.
A. 8th Cir., 1893) ; Cole v. Savings Co., 124 Fed. 113 (C. C. A. 8th Cir., 1903) ;
Lake V. MilUkcn, 62 Me. 240 (1873) ; Murphy v. A^ Y., 89 App. Div. N. Y.
93 (1903). cf. Haverly v. R. R. post p. 82, and Oil Citv v. Robinson, post p. 74,
n. i; Pass. Ry. Co. v. Tncli. 117 Pa. 390 (1888); JVest Mahanov v. Wat-
son, 112 Pa. 574 (1886), 116 Pa. 344 (1887); in these cases the defendants'
act was either proved, admitted or conceded to be negligent— and the
rule annoimced by Paxson, J., was applied to ascertain the extent of his lia-
bility for its consequences. See also Cooley Torts, 3rd Ed. *9i, n. 2y, 28.

In the followin.e: cases the rule was applied, the negligent character of
the defendants' conduct being still in question: McCaulex v. Logan. 152 Pa.
202 (1892) : Sturgis v. Kountc. 165 Pa. ^'S (1894") : Bchling v. Pipe Line. 160
Pa. 359 ri894) : Scott v. R. R.. 172 Pa. 646 (1896) : Cochran v. Phila. 184 Pa
565 (1898^ ; .see also Scott v. Hunter. 46 Pa. 192 (1863) ; McGrezv v. Stone
53 Pa. 4.36 (1866"): Fairbanks v. Kerr. 70 Pa. ^ (1871"); so also Krcigh v
Westinghouse, et al. 152 Fed. T20 ('8th Circ, 1907^ ; Bany v. R. R., 84" Fed.
944 (C. C. A.. 8th Circ. 1898): Deisenrieter v. Kraus-}ferkel Co '97 Wis
279 (1897), all cases dealing with the measure of care owed by a master to
his servants.

In Wood V. 7?. R.. 177 Pa. 306 (1806). as in Hoag v. R. R.. while the
carelessness of the defendant was bevond question, his negligence toward the
plaintiff was in doubt [cf. Denman v. R. R., 26 Minn. 357~'(i88o)] a passen-


Supreme Court of Pennsylvania, 1890. 139 Pennsylvania, 363.

Mr. Justice Clark: The defendant, Robert Hogsett, is the
owner of the Lemont furnace, on the hne of the Southwest Penn-
sylvania raih-oad, and the plaintiff, who, on the thirteenth of Oc-
tober, 1883, was a passenger upon one of the railroad trains, brings -
this suit to recover damages for a personal injury, received through
the alleged negligence of the defendant's employees. It appears
that a railroad track was used in connection with the furnace, and
that what is called a dinkey engine was operated thereon, in fur-
nishing supplies of stock, ore, and coke to the furnace. The furnace
track, in running out from the furnace to the coke ovens, forms, as
it were, the arc of a circle, and the railroad track, crossing the fur-
nace track twice, subtends the arc as a chord.

The collision which occurred at the first crossing, was caused
by the culpable negligence of the defendant's engineer; this fact is
conclusively established by the verdict of the jury, and in the deter-
mination of the questions of law raised upon the assignments of
error, this fact must necessarily be assumed.^

It is unnecessary, therefore, to refer to the evidence bearing
upon that question. The appellant's contention is, however, that, as
the plaintiff's injuries were not received in that collision, but in the
collision which subsequently occurred at the other extremity of the
chord, the negligence of the engineer, under the circumstances, can-
not be regarded as the proximate, but as the remote cause of the
injury. Ordinarily, the question of proximate cause is for the jury;
but, where the facts are not in dispute, the determination of that
question is for the court: West MaJvanoy Tzvp. v. Watson, 112 Pa.
574; s. c, 116 Pa. 344. Some reference to the undisputed facts,
therefore, is necessary to a complete understanding of the question
thus raised.

It is conceded that in the first collision, although no one was
injured, the rear truck of the rear coach of the passenger train was
derailed. The brakeman pulled the automatic cord which operates

ger while waiting on a station platform was struck by the body of a woman
negligently run down at a level crossing some distance away from the plat-
form'; cf. 'R. R. V. Chapman, 80 Ala. 615 (1886) ; Quill v. R. R., 11 N. Y. Supp.
80 (1890) ; R. R. V. Bailey, 105 Ga. 100 (1898), in all of which cases the
plaintiff while not upon the track when struck was near the place of collision.

^ When the train in which the plaintiffs were traveling approached the
first crossing, a "dinkey engine" of the defendant, pushing a coke car, was
upon the semi-circular part of the defendant's track, backing toward the same
crossing. The engineer of the dinkey engine was inexperienced, and had no
watch or time card. The passenger train was hidden from his view by a
heap of slag and cinder, dumped upon the defendant's property, until it ar-
rived at the crossing, and until then the defendant's engineer was ignorant of
its approach. The engineer of the passenger train did not see the dinkev en-
gine until the same time. The testimony was conflicting as to whether the
whistle of the passenger engine was sounded before it reached the crossing,
and also as to whether the defendant's engineer whistled.


the air brakes. The engincr put on the air from the engine, and, the
truck having regained the track, the train, whicli consisted of three
cars, came to a full stoj), with the middle car standing upon the
second crossing. The engineer of the dinkey says that, about the
time of, or immediately before the collision, he reversed his engine,
shut off the steam, and fearing that they would be crushed, both the
engineer and the fireman jumped from it to the ground. By some
means, however, presumably by the jar of the collision, the throttle
was re-opened, and the dinkey at once started with some speed
around the arc to the second crossing, where it came in collision
with the middle coach, in which the plaintiff was riding. The in-
juries complained of were received in this second collision. The
appellant's contention is that the throttle having been closed before
Lcehan, the engineer, left the dinkey, the second collision, under all
the circumstances, could not have been foreseen by him, as the
natural and probable consequence of his conduct, and that, being in
fear of his life, he had a right to quit the engine for a place of
safety. It may be, perhaps, that the engineer and fireman, being
under actual apprehension of great bodily harm, were, in any crimi-
nal aspect of the case, justified in leaping from the engine to save
themselves, even if in so doing they should put in jeopardy the lives
of others. But, assuming this to be so, it must be remembered that
it was their own negligence which put them in fear of their lives,
and constrained them to leap from the engine and submit it. without
control, to the consequences of the collision. They will be justified,
perhaps, as we have said, in saving themselves, but it does not fol-
low that either they, or their employer, would not be held for the
negligent act which not only put them in peril but resulted in per-
sonal injury to the plaintiff.

It is true, as the appellant contends, that the injury must be the
natural and proximate consequence of the negligence, — a conse-
quence likely to flow from the negligent act. The engineer would
be held to have foreseen whatever consequences might ensue from
his negligence without the mtervcntion of some other independent
agency,^ and both his employer and himself would be held for what
might, in the nature of things, occur in consequence of that negli-
gence, although, in advance, the actual result might have seemed
improbable: Oil City Gas Co. v. Robinson, 99 Pa. 6. We do not
know that the throttle was opened by the jar of the collision, only
from the fact that it was liable to be so. and the engineer will be

'So in Reimard v. Bloomsburg & S. R. Co.. 228 Pa. 384 (1910). Brown.
J., while holding that a result to be proximate must be within the foresight
of a prudent man at the time of the wrongful act, held tliat "tlie circum-
stances surrounding the plaintiff when ejected from the train (among others
that she did not know her way from the small station where she was put off)
rre presumed by law to be known by the defendant company," and so it was
for the jury to say whether they ought to have anticipated that she would
walk home along the tracks and be run over; and so in Brcuisholtz v. Penn-
sylvania R. Co., 229 Pa. 89 (1910), Potter, J., holds that it is within the fore-
sight of one operating a train so that it runs into a house and partially de-
stroys it that the female owner, in running along the usual route to her chil-
dren in dark and confusion to save them, will fall into an opening so created;
cf. Hill X. Winsor.


presumed to have foreseen what was liable to occur. The inquiry
must always be whether there was any intermediate cause, discon-
nected from the primary fault and self-operatinsf, which produced
the injury: Mihc^'oitkcc. etc., Ry. Co. v. Kcllofi;g, 94 U. S. 469. But
no intermediate cause, disconnected with the primary fault and
self-operatin£r, existed in this case, to affect the question of the de-
fendant's liability ; it was the ensfineer's neq-liisfence that caused the
first collision, and what occurred in consequence of this collision
was not broken by the intervention of any independent agent, what-
ever ; the first collision derailed the truck, and at the same instant
opened the throttle and turned loose the destructive agency which
infiicted the injuries complained of. The negligence of the defend-
ant's engineer was the natural, primary, and proximate cause of the
entire occurrence.

Judgment is affirmed.,^

Fell, J., in McKee v. Harrisburg Traction Co., 211 Pa. 47
(1905)' P- 50- True, when an act is clearly negligent one may be
held liable for its unforeseen consequences, however remote, which
follow in the natural sequence of events.^ But an act cannot be held
to be negligent when, as in this case, there Jvas n n re^samhlp ground
_J^er'SIIppoiing that it would cause injury to anyone.-

^\pplied in Quigley v. Canal Co., 142 Pa. 388 (1891), p. 397, to hold in-
jury to a frightened horse while running away to be the legally proximate re-
sult of a failure to give warning of approach of train, whereby horse was
driven close to track and in Gudf elder v. R. R.. 207 Pa. 629 (1904), to hold
that a railroad which drew a punctured naphtha car within reach of a
lighted switch lamp must foresee that the resulting fire would follow the
naphtha into and through a sewer to its outlet 2,800 feet away; in both these
cases the defendant's act was negligent, a breach of a duty of care admittedly
owed the plaintiff.

See aecord, Thompson, Negligence, "Vol. i, § 156, "Proximate cause is
probable cause; and the proximate consequences of a given act or omission,
as distinguished from a remote consequence, is one which succeeds naturally
in the ordinary course of things and which, therefore, ought to have been
anticipated by the wrongdoer." In Watson v. Dilts, 116 Iowa 249 (1902),
this is applied to require that a trespasser stealthily entering the house of
plaintiff's husband at night should anticipate her subsequent paralysis through
fright and in Stezvart V. Ripon, 38 Wis. 584 (1875), to hold that city authori-
ties ought to know that scrofulous people may use the street and so should
anticipate that the effects of fall in a defective pavement would be aggravated
by the plaintiff's scrofulous condition; Armstrong v. Railzvay Co., 123 Ala.
233 C1898), death from blood poisoning, following slight laceration of fin-
gers ; and per Cockburn, C. J., Clark v. Chambers. L. R. 3 Q. B. D. 327, p.
338 (1878).

^Accord: Oil City v. Robinson, 99 Pa. I (1881) ; Pittsburg v. Grier, 22
Pa. 54 (1853), ^nd cases given in note to Bunting v. Hogsett, supra.

'Accord: Cases given in note to Hoag v. R. R., supra, p. 247.

The plaintiff to succeed must make out, first, that the defendant was
guilty of negligence, i. e., some breach of duty owing by the defendant to the
plaintiff; secondly, that the injury was the direct (here the rule of liability
aonears to be too narrowly stated) result of the negligence. Lord Hershell,
O'Neill V. Everest, 7 Aspinwall 163 (1892), p. 165. A tendency to overlook
the twofold nature of the question of defendant's liability for harm done
bv his acts and to treat it as a single problem has led to much confusion — sec
Wood V. R. R.. 177 Pa. 306 (1896), supra; Hoag v. R. R.; supra, p. 68.



Intervening Agents, (a) Natural Forces.

Supreme Judicial Court of Massachusetts, 1875. 118 Massachusetts, 131.

Morton, J. : The plaintiffs were engaged in building a sea
wall for the Boston Gas Light Company, around and in front of
their wharf at Commercial Point. There was evidence tending to
show that the Gas Light Company had given to the plaintiffs the
exclusive right to use the wall to lay their vessels at as a place of
safety in case of storms.

The judge, who tried the case without a jury, has found that
the plaintiff's had such exclusive right, and it is not our province
to revise his findings upon any questions of fact. The defendant
Dutch, therefore, had no right to use the wall to the exclusion of
the plaintitfs' vessels, and having done so, and having refused to
remove his vessel when requested, he is guilty of a violation of the
plaintiffs' rights, for which they may recover, in this action of tort,
whatever damages they sustained by reason of the tortious acts
of the defendant. The ruling of the Superior Court to this effect
was correct.

The defendant contended, and asked the court to rule, "that
the damage alleged and proved is too remote from the act com-
plained of, and is not the proximate consequence of the same
sufficiently in law to render the defendants or any of them liable

The facts bearing upon this question are as follows : At the
time of the accident, the plaintiffs had several vessels engaged in
bringing and laying stone for the construction of the sea wall.
Most of the wail had been built only up to low water mark, but
the plaintiffs, in the beginning of the work, had built about two
hundred feet of the wall to a height of thirteen feet above low
water mark, for the purpose of furnishing a safer place to lay their
vessels at in case of easterly winds or heavy seas. They could
lay two of their vessels behind this high part of the wall. On the
night of the accident this part of the wall was wholly occupied
by the df'fendant's schooner, so that there was no room for any
other vessel. The plaintiffs had five vessels at the sea wall. About
five o'clock it began to blow strongly from the eastward : the storm
increased during the night, and about eleven o'clock two of the
plaintififs' vessels were '^imk. The court found as a fact that the
storm was such as is not uncommon in this climate.

The defendant contends that the ininry to the plaintiflFs was
the result of the storm solely, and that he is not liable for it,
although his exclusion of the plaintiffs' vessels from a place of
safety behind the wall was tortious. The cases upon this subject
are numerous. The rule is well settled and is constantly applied


in this Commonwealth, that one who commits a tortious act is
liable for any injury which is the natural and probable consequence
of his misconduct. He is liable not only for those injuries which
are caused directly and immediately by his act, but also for such
consequential injuries as, according to the common experience of
men, are likely to result from his act. And he is not exonerated
from liabilit}' by the fact that intervening events or agencies con-
tribute to the injury. The true inquiry is whether the injury
sustained was such as, according to common experience and the
usual course of events, might reasonably be anticipated. A few
of the more recent cases are cited. Hoadley v. Northern Transporta-
tion Co., 115 j\Iass. 304; Metallic Compression Casting Co. v. Fitch-
burg Railroad, 109 Mass. 2^/ : Salisbury v. Herchenroder, 106 Mass.
458; Wellington v. Donnier Kerosene Oil Co., 104 Mass. 64; Carter
V. Tozvne, 98 Mass. 567; McDonald v. Snelling, 14 Allen, 290.

Applying these principles to the case at bar, we are of opinion
that the injury to the plaintiffs' vessels by the storm was an in-
jury w^hich was reasonably to be apprehended as a consequence of
their exclusion from the place of safety furnished by the sea wall.
The wall was built for protection against storms. It is found as a
fact that the storm which arose was not an uncommon one in this
climate. It was reasonably to be anticipated that such a storm might
arise, and that vessels exposed to it would be in danger of injury.
The wrongful act of the defendant, in taking and retaining exclusive
possession of this place of safety, exposed the plaintiffs' vessels to
the dangers of the storm, and the injury which they sustained was
the natural and probable consequence of this wrongful act. Within
the rule above stated, the defendant is liable for such injury.

Exceptions overruled}


Court of Appeals of New York, 1866. 35 New York, 210.

Hunt, J.: On the 15th day of Jul}^, 1854, in the city of Syra-
cuse, the defendant, by the careless management, or through the
insufficient condition, of one of its engines, set fire to its woodshed,
and a large quantity of wood therein. The plaintiff's house, situ-
ated at a distance of one hundred and thirty feet from the shed,
soon took fire from the heat and sparks, and was entirely consumed,
notwithstanding diligent efforts were made to save it. A number
of other houses were also burned by the spreading of the fire. The
plaintiff brings this action to recover from the railroad company the
value of his building thus destroyed. The judge at the Circuit non-
suited the plaintiff, and the General Term of the fifth district
affirmed the judgment.

^Accord: Bailiff of Romney Marsh v. Trinity House, L. R. 5 Ex. 204
(1870); Scott V. Hunter, 46 Pa. 192 (1863). See as to winds, Haverley v.
R. R.. p. 82, and notes p. 84. and as to water carrying burning oil. Kuhn v.
Jewett, 32 N. J. Eq. 647 (1880) ; contra (semble), Hoag v. R. R., 85 Pa. 293


The question may Ijc thus stated : A house in a populous city
takes lire, through the neghgence of the owner or his servant ; the
flames extend to and destroy an adjacent building: Is the owner of
the first building liable to the second owner for the damage sustained
by such burning?

It is a general principle that every person is liable for the con-
sequences of his own acts. He is thus liable in damages for the
proximate results of his own acts, but not for remote damages. It
is not easy at all times to determine what are proximate and what
are remote damages. In Thomas v. Winchester (2 Seld. 408),
Judge RuGGLES defines the damages for which a party is liable, as
those which are the natural or necessary consequences of his acts.
Thus, the owner of a loaded gun, who puts it in the hands of a
child, by whose indiscretion it is discharged, is liable for the injury
sustained by a third person from such discharge, (5 Maule & Sel.
198.) The injury is a natural and ordinary result of the folly of
placing a loaded gun in the hands of one ignorant of the manner
of using it, and incapable of appreciating its effects. The owner of
a horse and cart, who leaves them unattended in the street, is liable
for an injury done to a person or his property, by the running away
of the horse {Lynch v. Nurdiii, i Adol. & Ellis, N. S., 29; Illidge
V. Goodin, 5 Car. & P. 190), for the same reason. The injury is
the natural result of the negligence. If the party thus injured had,
however, by the delay or confinement from his injury, been pre-
vented from completing a valuable contract, from which he expected
to make large profits, he could not recover such expected profits
from the negligent party, in the cases supposed. Such damages
would not be the necessary or natural consequences, nor the results
ordinarily to be anticipated, from the negligence committed. (6
Hill, 522; 13 Wend. 601; 3 E. D. Smith, 144.) So if an engineer
upon a steamboat or locomotive, in passing the house of A., so care-
lessly manages its machinery that the coals and sparks from its fires
fall upon and consume the house of A., the railroad company or the
steamboat proprietors are liable to pav the value of the property
thus destroyed. {Field v. A'. Y. Central R. R., 32 N. Y. 339.) Thus
far the law is settled and the principle is apparent. If, however,
the fire communicates from the house of A. to that of B., and that
is destroyed, is the negligent party liable for his loss? And if it
spreads thence to the house of C, and thence to the house of D.,
and thence consecutively through the other houses, until it reaches
and consumes the house of Z., is the party liable to pay the damages
sustained by these twenty- four sufferers? The counsel for the
plaintifif does not distinctly claim this, and I think it would not be
seriously insisted that the sufferers could recover in such case.
Where, then, is the principle upon which A. recovers and Z. fails?

It has been sugg^ested that an important element exists in the
diflference between an intentional firing and a negligent firing
merely; that when a party designedly fires his own house or hi;*
own fallow land, not intending, however, to do any injurv to his
neighbor, but a damage actually results, that he may be liable for


more extended damages than where the fire originated in accident
or negligence. It is true that the most of the cases where the

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 36 of 124)