Davenport v. McClellan

• Decision Date: 06 March 1916
• Citation: 96 A. 921,88 N.J.Law 653
• Parties: DAVENPORT v. McCLELLAN.
• Court: New Jersey Supreme Court

96 A. 921

88 N.J.Law 653

DAVENPORT

v. McCLELLAN.

Court of Errors and Appeals of New Jersey.

March 6, 1916.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by William A. Davenport, an infant, by his next friend, against Douglas Y. McClellan. From a judgment for defendant, plaintiff appeals. Reversed.

Terry Parker, of East Orange, for appellant. Lum, Tamblyn & Colyer, of Newark, for appellee.

BERGEN, J. The plaintiff's case established these facts: The defendant built a fire in one of the public streets of East Orange for the purpose of burning leaves, which he had collected in a heap, which was about two feet wide and three feet long; that, after the fire had been burning about an hour, he left it unextinguished and unguarded, and the plaintiff, a child of about five years of age, playing in the street, gathered other leaves, and put them on the fire, thereby causing a flame which set fire to his clothing, and he was severely burned, resulting in the injuries for which he brought this action.

The trial court directed a judgment of nonsuit upon the ground that the act of the child was an intervening cause, and therefore the negligence of the defendant was not the proximate cause of the injury. From this judgment, the plaintiff appeals. As a basis for the ruling, the trial court assumed that the defendant was negligent, but not liable because his act was not the proximate cause, the act of the child intervening. We think that there was sufficient proof on the question of negligence to require that it be submitted to the jury. On the question of intervening cause, we think the trial court was clearly in error. An intervening cause is the act of an independent agency which destroys the causal connection between the negligent act of the defendant and the wrongful injury, the independent act being the immediate cause, in which case damages are not recoverable because the original wrongful act is not the proximate cause. Cuff, Adm'x, v. Newark & N. Y. R. R. Co., 35 N. J. Law, 17, 10 Am. Rep. 205; Claypool v. Wigmore, 34 Ind. App. 35, 71 N. E. 509. In Scott v. Sheppard, 2 Blackstone R. 892, Smith's Leading Cases, 797, the defendant was held liable for injuries arising from the throwing of a lighted squib, although it had passed through the hands of at least two persons before it exploded, each adding a new propelling force, which the court held was but the continuance of the original wrong, the unlawful throwing of the lighted squib, and...