Cumberland Tel. & Tel. Co. v. Woodham

• Citation: 54 So. 890,99 Miss. 318
• Decision Date: 10 April 1911
• Docket Number: 15,015
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH COMPANY. v. HENRIETTA WOODHAM ET AL
• Court: United States State Supreme Court of Mississippi

54 So. 890

99 Miss. 318

CUMBERLAND TELEPHONE & TELEGRAPH COMPANY. v. HENRIETTA WOODHAM ET AL

No. 15,015

Supreme Court of Mississippi

April 10, 1911

APPEAL from the circuit court of Jackson county, HON. GEORGE S DODDS, Special Judge.

Suit by Henrietta Woodham et al. against the Cumberland Telephone &amp Telegraph Company et al., for the death of her husband. From a judgment for plaintiff for twenty thousand dollars defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Harris & Potter, for appellant.

The definition of negligence given by Shearman & Redfield (sec 3), is: "Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that degree of care, diligence and skill which it was his legal duty to use for the protection of another person from injury, as in a natural and continuous sequence, causes unintended damage to the latter. And in section 5, "A natural and continuous sequence uninterruptedly connecting the breach of duty with the damage, as cause and effect," and in section 26, "The breach of duty upon which an action is brought, must be not only the cause but the proximate cause of the damage to the plaintiff." "The proximate cause of an event must be understood to be that which in a natural and continuous sequence unbroken by any new independent cause produces the event."

This case falls short of this definition and lacks essential elements stated as being necessary to create a cause of action founded on tort.

The jury here complained of what was not a natural continuous sequence uninterruptedly connecting appellant's conduct with the damage, but was interrupted and broken by the removal of danger in cutting off the power. Appellant's conduct was not the cause, certainly not the causa causans of the death. The breach of duty was that of the light plant who alone had the means of making the venture arranged and undertaken by Mr. Woodham safe. An independent intervening cause produced the injury. Turning on the power was the proximate cause of the injury. Anderson's Law Dictionary defines the proximate as "The nearest immediate and direct cause; the efficient cause; the cause that sets another or other causes in operation; the dominant cause." " The proximate cause is the dominant controlling one and not those which are mere incidents." Words and Phrases.

Mr Woodham saw and comprehended the danger of the situation that had been brought about by the negligence of appellant; he was then in no danger of personal injury; his only fear was that his house might be burned. In this situation he made arrangements with the light plant and imposed a special duty upon them not to turn on the dangerous current while he undertook to protect his property.

At this time he knew there was no duty that could be performed by appellant, and that his only danger of personal injury was his own imprudence or from gross neglect and a disregard of a high duty by the persons in charge of the light plant, who had impliedly agreed to protect him. He assumed the risk of their injuring him. Fowles v. Briggs, 40 L. R. A. 528; Griffin v. Light Co., L. R. A. 318.

If he then relied upon appellant, who he knew was helpless, to serve him, it was certain personal injury or death to come in contact with the wire, and Mr. Woodham could not rightly take so great a personal risk in order to save his house and his negligence in so doing would be the proximate cause of his injury. Seal v. Ry. Co., 65 Texas 274; Cook v. Johnston, 58 Mich. 437; Cordiff v. Ry. Co., Has. 260; Morris v. Ry. Co., 148 N. J. 186; McMonamee v. Ry. Co., 135 Mo. 440; Crawley v. Ry. Co., 70 Miss. 340.

Even if he had been justifiable in attempting to save his house, there was no danger to his person or property that confronted him at the time he voluntarily went into the street to clear it of a live wire, or one that he knew would be alive and deadly if the power was turned on from the light plant.

The court will see from the evidence that after danger was discovered by Mr. Woodham, and when he was in no danger of personal injury, he called up the electric light plant, told them of the situation and requested that the power be turned off. At this time he knew appellants were helpless to protect him and he engaged the services of the only one who without delay could relieve the situation. Manifestly the light plant management owed him a high degree of care and a duty not to injure him or his property, and Mr. Woodham relying wholly and alone upon them for his protection in his undertaking, and knowing the consequences if they should fail in this duty and turn on the power, cut the wires from his house and after that undertook to remove the same from the street, when the power was (to say the least) negligently turned on and he was killed. Mr. Woodham's conduct and the turning on of the power by the light plant were two independent intervening acts of negligence and the failure of the light plant to observe its plain duty was the proximate cause of the injury.

We call the court's attention to the case of Cole v. German Sav. & L. Soc., sec. 63, L. R. A. 416, where the question of intervening cause is discussed and numerous authorities cited. Tuteen v. Hurley, 98 Mass. 211; Railway Co. v. Quick, 125 Ala. 553; Wharfboat Assn. v. Wood, 64 Miss. 661; Meyer v. King, 72 Miss. 1; Ry. Co. v. Woolley, 77 Miss. 927. In the case of Griffin v. Light & Power Co., 55 L. R. A. 318, the court says: "The limitation of the rule, as we understand it, is that there shall be no intervening human agency which might have averted the injury or furnished protection."

"The relation of cause and effect cannot be made out by including the independent illegal acts of third persons. A man may be justly held responsible for the necessary or ordinary legitimate consequences of his own acts, and such consequences may include in the chain of causes which connect the original act with the final effect, but he cannot be made accountable for the unauthorized illegal acts of other persons, although his own conduct may have indirectly induced or incited the commission of the acts." Olmstead v. Brown, 12 Barber 662.

"The test of proximate cause is whether the facts constitute a continuous succession of events, so linked together that they become a natural whole, or whether the chain of events is so broken that the final result cannot be said to be the natural and probable consequence of the primary cause." Words and Phrases.

The maxim of the law here applicable is, that in law the immediate and not the remote cause of any event is regarded, and in the application of it the law rejects, as not constituting the foundation for an action, that damage which does not flow proximately from the act complained of. In other words, the law always refers the injury to the proximate, not to the remote cause. The explanation of this maxim may be given thus. If the injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury follows as a direct and immediate consequence, the law will refer the damage to the last proximate cause and refuse to trace it to that which was more remote. The chief sufficient reason for the rule is to be found in the impossibility of tracing consequences through successive steps to the remote cause, and the necessity of pausing in the investigation of the chain of events at the point beyond which experience and observation convince us we cannot press our inquiries with safety. To the proximate cause we may usually trace consequences with some degree of assurance but beyond that we enter a field of conjecture, where the uncertainty renders the attempt at exact conclusions futile." Cooley on Torts (3d Ed.), p. 99.

"If the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause and not to that which was more remote." Coole yon Torts (3d Ed.), p. 103.

"Supposing that, if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? The question must be answered in the negative, for the general reason that causal connection between negligence and damage has been broken by the intervention of independent responsible human action. I am negligent on a particular subject matter. Another person moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a non-conductor and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. Wharton on Negligence, § 134.

"We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not where there is a sufficient and independent cause operating between the wrong and the injury. In such case the resort of the sufferer must be to the originator of the intermediate cause." Ry. Co. v. Kellogg, 94 U.S. 469; Tuten v. Hurley, 98 Mass. 211; Glassey v. Ry. Co., 185 Mass. 315; Andrew & Co. v. Kinsel, 114 Ga. 390; Williams v. Woodward Iron Co., 106 Ala. 254; Raddick v. Chemical Co., 124 Ill.App. 31; White's Sup.; Thompson on Negligence, § 54; Cuff v. Ry. Co., 30 N. J. L. 17; Afflick v. Bates, 21 R. I. 281.

In the case of Ry. Co. v. Cathey, 70 Miss. 337, Judge Campbell says: "It is not enough that negligence of the...