Helena Gas Co. v. Rogers

• Court: Arkansas Supreme Court
• Writing for the Court: KIRBY, J.
• Citation: Helena Gas Co. v. Rogers, 147 S.W. 473, 104 Ark. 59 (Ark. 1912)
• Decision Date: 29 April 1912
• Parties: HELENA GAS COMPANY v. ROGERS

147 S.W. 473

104 Ark. 59

HELENA GAS COMPANY v. ROGERS

Supreme Court of Arkansas

April 29, 1912

Appeal from St. Francis Circuit Court, Hance N. Hutton, Judge reversed.

Judgment reversed in part, affirmed in part and cause remanded.

Moore & Vineyard, Mann & Morrow and Norton & Hughes, for appellant.

1. The peremptory instruction to find for the defendant should have been given. The negligence of appellant, if any, was not the proximate cause of the injury, the fright of the horse being an efficient intervening cause. 87 Ark. 576; 76 Ark. 530; 86 Ark. 289; 69 Ark. 402; 89 Ark. 59; 53 Mich. 278; 124 F. 113; 47 Am. Dec. 578.

The peremptory instruction should have been given for the further reason that in removing the pole at the request of the city appellant was acting in the capacity of the servant of the city merely, and was under no liability that the city would not have been under had it moved the pole. 69 A. 636; 74 Ark 519; 73 Ark. 447; 57 Ark. 84; 49 Ark. 139; 145 Pa.St. 220; 27 Am. St. Rep. 685.

2. The court erred in refusing to give instruction 4 requested by appellant. The jury should have been instructed as to the meaning of the term "proximate cause," especially since the contention of the plaintiff was that the hole, and of the defendant that the accident to and fright of the horse, was the proximate cause. 97 Ark. 58.

There was no proof of the age and expectancy of the widow. Instruction 10 was correct and should have been given. 121 F. 420; 63 Miss. 291; 48 So. 735; 15 So. 876, 884; 3 Sutherland on Damages 283; 51 Ark. 509.

P. R. Andrews, for appellee.

The evidence is clear that the injury would not have occurred without the existence of the hole and the fact that it was left in an unguarded condition. Such being the case, the failure of the appellant to use ordinary care to keep the hole in a safe condition was the proximate cause of the injury. 54 Ark. 131, and cases cited.

The fact that a free light was hung on the pole for the city, and that the city engineer superintended the placing of poles and the making of the excavation under the power reserved in the granting of the franchise, does not relieve the gas company from liability. 79 Ark. 490; 56 Ark. 132; 54 Ark. 131; 46 Ark. 207; 68 Ark. 291; 86 Ark. 36.

Where two or more acts of negligence concur in producing an injury, each of said acts is, in a legal sense, a proximate cause. 61 Ark. 301; Id. 141; 73 Ark. 112; 75 Ark. 133; 79 Ark. 498; 86 Ark. 548.

KIRBY, J. MCCULLOCH, C. J., dissenting.

OPINION

KIRBY, J.

This is the second appeal of this case, and a statement of it and the opinion on the first appeal will be found in 98 Ark. 413 (Helena Gas Co. v. Rogers).

The case was reversed on the former appeal for the error of giving and refusing instructions requiring a higher degree of care of the gas company in guarding excavations made by it in the streets of a city to protect the public from injury therefrom than the law warranted, and upon the last trial, upon which the facts were developed substantially as upon the first, the court properly instructed the jury upon the measure of care required by the gas company, and refused, over its exceptions, to give its request for a peremptory instruction and instructions numbered 4 and 10, as follows:

"4. You are instructed that the burden

is upon the plaintiff to establish to your satisfaction, by a preponderance of testimony, that the negligence charged against the defendant was the proximate cause of the injury to plaintiff's intestate. And, in order to establish proximate cause, it is necessary in the first place that there be a direct connection between the negligent act and the injury, and that such act be the direct cause which set in motion the circumstances leading up to the injury, and which, in natural and continuous sequence, unbroken by any new or intervening cause, produced the injury; and, unless you are so convinced, it is your duty to find for the defendant."

"10. The measure of damages is also affected by the expectancy of the widow, and, in addition to what has been given you on the measure of damages, you are also instructed that the pecuniary loss of the widow is limited to her life expectancy, as you may find from the proof."

The jury returned a verdict against it and from the judgment appellant brings this appeal.

It is urged, first, that the court erred in refusing to give a peremptory instruction for appellant, it being contended that its negligence, if any there was, was not the proximate cause of the injury.

The question of proximate cause, as this court has already said, is not one of science or legal knowledge, and is a question ordinarily for the jury, to be determined as a fact from the particular situation, in view of the facts and circumstances surrounding it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments. Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S.W. 1189. It is generally held, however, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Milwaukee, etc., Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Gage v, Harvey, 66 Ark. 68, 48 S.W. 898; St. Louis, I. M. & S. Ry. Co. v. Bragg. 69 Ark. 402, 64 S.W. 226. It is not necessary that the effect of the act or omission complained of would in all cases, or even ordinarily, be to produce the consequences which followed, but it is sufficient if it is reasonably to be apprehended that such an injury might thereby occur to another while exercising his legal right in an ordinarily careful manner, or, in other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated as likely to result in injury to others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen. Pulaski Gas Light Co. v. McClintock, supra; Foster v. Chicago, R. I. & P. Ry. Co., 127 Iowa 84, 4 Am. & Eng. Ann. Cas. 150, 102 N.W. 422; Baltimore & O. Rd. Co. v. Slaughter, 167 Ind. 330, 7 L. R. A. (N. S.) 597, 79 N.E. 186.

There was a disputed question of fact as to the care exercised by appellant in guarding the excavation made by it, to protect persons rightfully using the streets and sidewalks from injury on account thereof, and the question whether it had exercised the care required by law, as well as whether its negligence was the proximate cause of the injury, were properly submitted to the jury.

It was within the jury's province to determine, from the facts and circumstances surrounding the accident and injury, whether it was the natural and probable consequence of the negligence of the defendant in digging the hole and leaving it unguarded, and they determined it against appellant under instructions from the court that fairly submitted the question.

It is argued that appellant could not possibly have contemplated the injury that did occur because of the negligent failure to keep the excavation covered, but it was not necessary that it should have foreseen the particular injury in order to be liable, but only that such an injury, or an injury of some kind, might occur to another while in the exercise of his legal rights in an ordinarily careful manner because of such act.

It is also well known that horses are more or less prone to scare and shy at different objects along the streets and deflect from the beaten tracks, and public highways should be built and maintained in such a manner as to provide for the ordinary shying and starting of horses and the consequent deviation, as said in St. Louis, I. M. & S. Ry. Co. v. Aven, 61 Ark. 141, 32 S.W. 500.

It is no defense to appellant's negligence to say that the injury would not have occurred if the horse had continued along the street and had not shied and run away, for it would not have occurred had it exercised the proper care to protect the traveller against just such an incident which was likely to occur. There was no intermediate cause disconnected from the primary fault and self-operating which produced the injury, and its negligence was the proximate cause of it; for, even if the running away of the horse be considered a concurring cause, it does not prevent the liability of the appellant to answer for the negligence but for which the injury would not have occurred. Pulaski Gas Light Co. v. McClintock, supra; St. Louis, I. M. & S. Ry. Co. v. Aven, 61 Ark. 141, 32 S.W. 500; Strange v. Bodcaw Lumber Co., 79 Ark. 490, 96 S.W. 152; Waters-Pierce Oil Co. v. De Selms, 212 U.S. 159, 53 L.Ed. 453, 29 S.Ct. 270; Pugh v. Texarkana Traction Co., 86 Ark. 36, 109 S.W. 1019; S. W. Tel. & Tel. Co. v. Myane, 86 Ark. 548; The G. R. Booth, 171 U.S. 450, 43 L.Ed. 234, 19 S.Ct. 9.

The jury were told, that, if appellant's negligence was one of the concurring proximate causes of the injury, it would be liable therefor, and the only duty incumbent upon it in the making of the excavation was to use ordinary care to prevent an injury liable to result therefrom; and from all the instructions the jury understood that the appellant had the right to dig the hole as it did for the erection of the post, and was only bound to the exercise of ordinary care to keep and maintain it in a proper and safe condition to prevent injuries that were likely to happen as the natural and probable consequence of it being left uncovered, and there was no...