Fairbanks v. Kerr

• Decision Date: 09 January 1872
• Citation: 70 Pa. 86
• Parties: Fairbanks <I>versus</I> Kerr & Smith.
• Court: Pennsylvania Supreme Court

70 Pa. 86

Fairbanks versus Kerr & Smith.

Supreme Court of Pennsylvania.

November __, 1871.

January 9, 1872.

November __ 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1871, No. 215.

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D. S. Morris, J. McMichael and D. B. Kurtz, for plaintiff in error.

R. B. McComb, for defendants in error.

The opinion of the court was delivered, January 9th 1872, by AGNEW, J.

Kerr & Smith, the plaintiffs below, were contractors for laying a pavement of flag-stones. They laid up several piles of stones in the street along the curbstone, ready to begin work. The defendant Fairbanks got upon one of these piles, and began to make a political speech. A crowd gathered around, and some of the bystanders mounted another one of the piles, and by their weight caused several of the stones to crack and break. Kerr & Smith sued Fairbanks for this injury. There was no evidence that Fairbanks requested, or in anywise induced these bystanders to stand upon the pile, excepting so far as his speech drew them together, and they mounted the pile to hear and see more conveniently. The court below held that if the persons, whose combined weight broke down the stones, were collected together by the act of the defendant in making the speech in the street, he would be responsible in an action on the case for the consequential damages. This instruction was not qualified. The court told the jury that a proximate cause is one which is a first and direct power producing the result, and a remote cause is one removed from the direct, and may be called the secondary cause; but said nothing upon the character of the act which caused the injury, and gave no instruction to ascertain whether this act was a natural or probable consequence of making the speech in the street, or one which might have been readily foreseen by the defendant. In effect, such an unqualified instruction would expose the defendant to all the consequences of his street-speech — the accidental and even the wilful acts of the bystanders gathered there by it, as well as the natural and probable consequences which he might have foreseen. Thus, if one of the crowd should by accident thrust his elbow through a window-pane, or inadvertently tread upon and break an article of show beside a door, or even if one had his pocket picked, the unfortunate speaker would be held liable for all these consequences of his speech. The court, therefore, really decided as a question of law a matter of fact properly belonging to the jury, to wit: that the mounting of the pile of stones by the bystanders was the natural and probable consequence of the speech in the street, which the defendant ought to have, or might have, foreseen. This was an error: the question was a fact dependent on all the circumstances. For example, had the second pile been two hundred feet or a square away from the speaker, no one could say that by any fair reasoning he might have expected such an accident to happen.

The maxim causa proxima non remota spectatur governs cases of this kind, and yet its application is not always easy. Many cases illustrate, but none define, what is an immediate or what is a remote cause. Indeed, such a cause seems to be incapable of any strict definition which will suit in every case. It was said in Morrison v. Davis & Co., 8 Harris 171, the general rule is, that a man is answerable for the consequences of a fault only so far as the same are natural and proximate, and as may, on this account, be foreseen by ordinary forecast, and not for those which arise from a conjunction of his fault with other circumstances that are of an extraordinary nature. Of the first branch of this proposition, Scott v. Hunter, 10 Wright 192, is an illustration. Therefore a defendant who unnecessarily occupied the passage-way to the locks of one of the dams of the Monongahela slack-water, from the afternoon of one day till the afternoon of the following day, holding the boats of the plaintiff into the stream, while it was rising rapidly, until the flood carried them over the dam, was held to be liable for the injury. The court below thought the flood was the proximate cause of the injury, and the occupancy of the access to the locks by the defendant was too remote; but this court reversed the judgment. The question whether the defendant ought not to have apprehended the danger to the plaintiff's boats when the stream was rising rapidly was not submitted to the jury, and hence, said Mr. Justice Strong, here, we think, the court erred in assuming to decide as a matter of law that the wreck of the boats was not the natural consequence of the wrongful act of the defendant in blocking up the locks and channel of the river, and holding the boats of the plaintiff...