124 F. 113 (8th Cir. 1903), 1,893, Cole v. German Savings & Loan Soc.

Docket Nº:1,893.
Citation:124 F. 113
Party Name:COLE v. GERMAN SAVINGS & LOAN SOC.
Case Date:July 23, 1903
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 113

124 F. 113 (8th Cir. 1903)

COLE

v.

GERMAN SAVINGS & LOAN SOC.

No. 1,893.

United States Court of Appeals, Eighth Circuit.

July 23, 1903

         Syllabus by the Court.

         An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury.

         But an injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury.

         An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, and that probably would not have resulted from it, had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable, and such an act of negligence is the remote cause, and the independent intervening cause is the proximate cause, of the injury.

         It is no defense to an action for damages for an injury of which the act of omission of the defendant was the proximate cause that the negligent or wrongful act of another concurred with the recklessness of the defendant to produce the untoward result.

         But the concurring negligence of another cannot transform the remote into the proximate cause of an injury, or create or increase the liability of the defendant. It cannot make an injury which was not the natural and probable result of the negligent acts or omissions of the defendant their natural and probable consequence. No act contributes to an injury, in the legal acceptation of that term, unless it is a proximate cause of that injury, and no one is liable for an injury unless it was the natural and probable result of his act.

         The plaintiff entered and passed along a hall in the building of the defendant to take the elevator, the well or shaft of which opened into the hall. A boy, who was a stranger to her and to the defendant, hurried past her in the hall, pushed the sliding door of the well of the elevator, which was open from one to ten inches, back as far as it would go, and stepped back. The plaintiff supposed this boy was the operator of the elevator, and stepped in. The elevator was at an upper floor in charge of its regular operator, and plaintiff fell to the bottom of the well and was injured. The hall was so dark that it was difficult, but not impossible, to see the elevator when it was at the lower floor, and when it was not there nothing but darkness was visible in the well. The strange boy had been seen by witnesses riding and visiting on the elevator a dozen times and endeavoring to operate it once. The door of the shaft or well could be opened from the outside, when it was latched, by lifting and sliding it. It would bound open from one to ten inches when the operator jammed it, and it was often left open to that extent. Held, the negligent acts and omissions of the defendant were not, and those of the strange boy were, the proximate cause of the injury. The latter constituted an independent intervening cause, which interrupted the natural sequence of events between the negligence of the defendant and the injury of the plaintiff, insulated the defendant's negligence from the plaintiff's hurt, broke the causal connection between them, and produced her injury.

         The act of the strange boy could not be foreseen or reasonably anticipated as the probable result of the negligent acts or omissions of the defendant. A violation of law or duty by a third party, when not intended by a defendant, is not regarded by the law as the natural consequence of his acts of negligence, and cannot be reasonably anticipated as their probable result.

         There is always a preliminary question for the judge at the close of the evidence in every trial to a jury, and that is, not whether or not there is any evidence, but whether or not there is any substantial evidence, upon which a jury can properly render a verdict for the party who relies upon it.

         The question, what is the proximate cause of an injury? is ordinarily a question for the jury. But the burden is always on the plaintiff, in an action for personal injury, to show that the negligence charged was the proximate cause of the injury; and where, at the close of the trial, there is no substantial evidence upon which the jury can properly find that the defendant's negligence was the proximate cause of the injury, it is the duty of the court, as it is in a like condition of the evidence in the trial of other issues of fact, to peremptorily instruct the jury to return a verdict for the defendant.

         Herbert R. Macmillan (Hiram H. Henderson, on the brief), for plaintiff in error.

         Frederick V. Brown (W. A. Kerr and Edward F. Waite, on the brief), for defendant in error.

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         In Error to the Circuit Court of the United States for the District of utah.

         The plaintiff, Viola Cole, sued the German Savings & Loan Society for damages which she alleged were the result of its negligence in the care and operation of its elevator, and at the close of the trial these facts were established: About 4 o'clock in the afternoon of a bright sunshiny day in May, the plaintiff, a lady 32 years of age, entered the hall of a building of the German Savings & Loan society for the purpose of riding on an elevator to an upper story. The well of this elevator was about 40 feet distant from the entrance to the hall, into which it opened. It was separated from the hall by a door, which at the time was standing open not more than 10 inches. As the plaintiff passed through this hall, a boy who was a stranger to her, and who was not employed by or authorized to act for the defendant, but who had been seen by one of the witnesses prior to that time endeavoring to operate the elevator once, and riding upon it and visiting the boy in charge of it a dozen times, hurriedly passed the plaintiff, seized the sliding door to the elevator shaft, pushed it back as far as it would go, and stepped back. The elevator was at an upper story in charge of its regular operator. The plaintiff supposed that the strange boy was the operator of the elevator, stepped into the shaft, and fell 10 1/2 feet to its bottom, and was seriously injured. The hall was dark and gloomy. It was difficult to see the elevator at the lower floor, but it was not impossible to see it. When it was not at that floor, nothing but darkness was visible in the well below it. There was no artificial light in the hall at the time of the accident, although there were the means to make an electric light, which was often lighted, just in front of the door of the shaft. This door was furnished with a hook, which, when the door was closed, entered a slot and grasped a bar. But the door could be opened from the outside, even when it was latched, by lifting it and pushing it back. When the employe in charge of the elevator jammed the door, it would bound back and slide open from 1 to 10 inches. The court instructed the jury, upon this state of facts, to return a verdict for the defendant, and this charge, together with certain rulings rejecting proffered testimony, is assigned as error.

Page 115

         Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

         SANBORN, Circuit Judge, after stating the case as above, .

         The crucial question in this case is whether or not the negligence of the defendant was the proximate cause of the injury of the plaintiff, so that, in the legal acceptation of that term, it contributed to her hurt. 'Causo proxima, non remota, spectatur,' and those damages which are the result of remote causes form a part of that large mass of resulting losses styled 'damnum absque injuria,' for which the law permits no recovery. A clear conception of the test which distinguishes the proximate from the remote cause is, therefore, the first and the indispensable prerequisite to a true answer to the question which this case presents; for by that test alone must the issue here, in all the varying garbs in which the ingenuity of counsel has clothed it, be tried and be ultimately determined. This test is most clearly seen from the standpoint of the injury inflicted, and is well disclosed by these indisputable principles of the law:

         An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, and that would not have resulted from it, had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate, cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it--the result which may be reasonably anticipated from it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. Chicago, St. P., M. & O. Ry. Co. v. Elliott, 55 F. 949, 952, 5 C.C.A. 347, 350, 20 L.R.A. 582; Railway Co. v. Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256; Hoag v. Railroad Co., 85 Pa. 293, 298, 299, 27 Am.Rep. 653.

         Let us try the issue in hand by these familiar rules. It goes...

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