Foley v. McMahon

• Decision Date: 31 October 1905
• Citation: 90 S.W. 113,114 Mo.App. 442
• Parties: MARTIN FOLEY, by next friend, MICHAEL FOLEY, Respondent, v. McMAHON, Appellant
• Court: Missouri Court of Appeals

90 S.W. 113

114 Mo.App. 442

MARTIN FOLEY, by next friend, MICHAEL FOLEY, Respondent, v. McMAHON, Appellant

Court of Appeals of Missouri, St. Louis

October 31, 1905

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

REVERSED.

Judgment reversed.

Wm Wehrenbrecht for appellant.

(1) Defendant's instruction in the nature of a demurrer offered at the close of plaintiff's case, should have been given. There was no evidence to show that plaintiff was injured by reason of a defect in the harness. This was the only issue in the case. Dunn v. Railroad, 21 Mo.App. 188; Karle v. Railroad, 55 Mo. 476. (2) The negligence of the defendant was too remote. Stanley v. Railroad, 114 Mo. 606. (3) The furnishing of defective harness was not the direct and proximate cause of the injury. The injury was not the natural and probable result of the negligence complained of. 21 Am. and Eng. Ency. of Law, 485; Klockenbrink v. Railroad, 81 Mo.App. 351; White v. Railroad, 84 Mo.App. 411; Thompson v. Railroad, 140 Mo. 125; Smith v. Hardesty, 31 Mo. 411; Hicks v. Railroad, 46 Mo.App. 304; Brown v. Railroad, 20 Mo.App. 222; Henry v. Railroad, 76 Mo. 288.

Hickman P. Rodgers and Forest P. Tralles for respondent.

Defendant was unquestionably negligent in this, that he failed to furnish plaintiff with a proper set of harness. It is the duty of a master to furnish his employee reasonably safe appliances with which to work, and his failure to perform that duty constitutes negligence. Parsons v. Railway, 94 Mo. 286; Nichols v. Crystal Plate Glass Co., 126 Mo. 55; Minnier v. Railroad, 167 Mo. 99.

OPINION

BLAND, P. J.

Plaintiff, a boy of seventeen years of age, was hired by defendant to drive his two-mule wagon. The outside tug of the harness on the near mule had been broken and wired together, unknown to plaintiff. Plaintiff was driving on the streets of St. Louis, hauling mud. On his route with his second load, the wire holding the broken tug gave way and the plaintiff alighted from the wagon to repair it. The wheels of the wagon were in a street railroad track and while plaintiff had his foot against the rail of the track and in front of the fore wheel of the wagon, pulling at the wire to bring the ends of the tug together, the mules of their own accord, started up and drew the front wheel over plaintiff's toes, causing the loss of two of them. The suit is to recover damages for the loss of the two toes.

The sole negligence pleaded and relied on was the furnishing of the defective harness by defendant to plaintiff. If the defect in the harness was not the proximate cause of the injury, defendant's peremptory instruction offered at the close of the evidence should have been given.

Anderson's Law Dictionary defines proximate cause as "the nearest, the immediate, the direct cause; the efficient cause; the cause that sets another or other causes in operation."

A more comprehensive definition is given in Railroad v. Kelly, 91 Tenn. 699, where, quoting from Deming & Co. v. Merchants' Cotton-press, 6 Pickel 353, it is said: "The proximate cause of an injury may, in general, be stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, which, had it not happened, the injury would not have been inflicted, notwithstanding the latter."

In Dickson v. Railroad, 124 Mo. 140, 27 S.W. 476; Hudson v. Railway, 101 Mo. 13, 14 S.W. 15; Glick v. Railway, 57 Mo.App. 97; Saxton v. Railway, 98 Mo.App. 494, 72 S.W. 717; Ohl v. Bethlehem Township, 199 Pa. 588, 49 A. 288; Insurance Co. v. Boon, 95 U.S. 117; Denver & R. G. R. Co. v. Sipes, 55 P. 1093; Liming v. Railway, 81 Iowa 246; Butcher v. Railroad, 37 W.Va. 180, 16 S.E. 457; and Western Railway of Alabama v. Mutch, 21 L.R.A. 316, it was ruled: "The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred." In other cases, proximate cause has been defined to be "that cause which immediately precedes and directly produces an effect as distinguished from a remote or predisposing cause," as in Troy v. Railroad, 99 N.C. 298; Isbell v. Railroad, 27 Conn. 393.

In Lindvall v. Woods, 44 F. 855, it is said: "The proximate cause of an injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have occurred."

In Yoders v. Amwell Township, 172 Pa. 447, quoting from Hoag v. Railroad, 85 Pa. 293, it is said: "The injury must be the natural and probable consequence of the negligence--such a consequence, as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer."

In Banks v. Railway, 40 Mo.App. 458, in determining what is the proximate cause of an injury, the true rule is declared to be as follows: "The injury must be the natural and probable consequence 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 case is approvingly cited in Bradford v. Railway, 64 Mo.App. 475.

In Rigby v. Hewett, 5 Exch. 243, it is said: "Every person who does a wrong is at least responsible for all the mischievous consequences that may be reasonably expected to result under ordinary circumstances from such misconduct."

In Graney v. Railway, 157 Mo. 666, 57 S.W. 276, Judge SHERWOOD said: "No man is required to anticipate an accident that has never occurred before, or held negligent if he fails to do so." [See also Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Ill. Central R. R. Co. v. Woolley, 77 Miss. 927, 28 So. 26; Hansen v. St. Paul Gaslight Co., 82 Minn. 84, 84 N.W. 727; American Express Co. v. Risley, 179 Ill. 295, 53 N.E. 558; Williams v. Railroad, 9 Pac. (Cal.) l. c. 155.]

In Shearman & Redfield on Negligence (4 Ed.), sec. 26, "The proximate cause of an event," it is said, "must be understood to be that which, on a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred."

Wharton says: "The injury must proceed in ordinary natural sequence from the neglect." [Wharton on Negligence, sec. 97.] The same author, at section 3, proposes the following definition: "Negligence, in its civil relations, is such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another. The inadvertency, or want of due consideration of duty, is the injuria, on which, when naturally followed by the damnum, the suit is based."

In Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S.W. 257, the following language of Channell, B., in Smith v. Railroad, L. R. 6 C. P. 20, is approvingly quoted, to-wit:

"I quite agree that where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering the question whether there is evidence of negligence for the jury or not; but when it has been determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not."

In the Hoepper case, the jury were instructed that "defendant cannot be chargeable in this action unless the injury is of such a character in the manner of its occurrence as might have reasonably been foreseen or expected as the natural result by defendant of its (the machine) so running roughly and jerking." The instruction was held...