Mahogany v. Ward

• Decision Date: 23 February 1889
• Citation: 17 A. 860,16 R.I. 479
• Parties: MAHOGANY et ux. v. WARD, Town Treasurer.
• Court: Rhode Island Supreme Court

17 A. 860

16 R.I. 479

MAHOGANY et ux.

v. WARD, Town Treasurer.

Supreme Court of Rhode Island.

Feb. 23, 1889.¹

Petition for new trial.

Francis B. Peckham and Patrick J. Galvin, for plaintiffs. William P. Sheffield and William P. Sheffield, Jr., for defendant.

MATTESON, J. This is an action of the case against the defendant, in his capacity as town treasurer of Middletown, to recover damages for injuries suffered by the plaintiff Mrs. Mahogany by reason of the neglect of the town to keep one of its highways safe and convenient for travelers, as required by the statute. The neglect complained of was that the town permitted a post to remain on the side of the highway, so near to the traveled part as to be dangerous to persons driving along such highway. At the trial the defendant contended that as the accident occurred on the side of the road, outside of the traveled carriage-way, and as the plaintiff Mrs. Mahogany left the carriage-way without necessity for so doing, occasioned by the condition of the highway, she assumed the risk of, or incident to, traveling outside of the carriage-way. The plaintiffs, in reply, alleged and offered testimony to prove that one Abner B. Lawton was at the time driving on the highway opposite, or nearly opposite, to the post complained of, and that he neglected to turn to the right of the center² of the traveled part of the road, and thereby compelled Mrs. Mahogany to drive upon the side of the road, where, notwithstanding she was in the exercise of due care, her carriage came in contact with the post, and she sustained the injuries, to recover damages for which this suit is brought. The defendant urged, in reply to this allegation of the plaintiffs, that if the injuries resutted from the wrongful act of Lawton in not driving to the right of the center of the traveled way, or would not have occurred but for his act, the town was not liable, and requested the court to so instruct the jury. The court, however, charged the jury that notwithstanding the accident might not have occurred but for the wrongful act of Lawton in not turning to the right of the traveled path, yet, if the accident would not have occurred but for the existence of the post on the bank, or side of the road, the town, if otherwise liable, would not be relieved simply because the wrongful conduct of Lawton concurred in causing the accident or injury. The defendant excepted to this charge, and also to the refusal to charge according to his request, and, the jury having returned a verdict for the plaintiffs, now petitions for a new trial, alleging, among other grounds, that the court erred in its instruction and refusal to instruct as stated above.

The instruction of the court to the jury applied to the case at bar the rule adopted in Hampson v. Taylor, 15 R. I. 83, 85, a rule supported by numerous cases. In all these cases, however, the cause concurring with the defect in the highway to produce the injury was a natural cause, or pure accident, for which no person was responsible, and not, as in the case at bar, the independent act of a responsible person. Such an act, it is said, arrests causation, being regarded as the proximate cause of the injury, the original negligence being considered merely as its remote cause. As in law it is the proximate, and not the remote, cause which is regarded, he who is guilty of the original negligence is not chargeable, but redress must be sought from him who directly caused the injury. Perhaps this principle is nowhere more clearly stated than by Wharton in his treatise on the Law of Negligence. In section 134 he propounds this question, "Supposing that if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no darmage to the plaintiff, is the defendant liable to the plaintiff?" and proceeds: "This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent, responsible human action. I am negligent on a particular subject matter as to which I am not contractually bound. 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 nonconductor, 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. I may be liable to him for my negligence in getting him into difficulty, but I am not liable to others for the negligence which he alone was the cause of making operative." And again, in section 999, he remarks: "It has been already seen that the negligence of a third party intervening between the defendant's negligence and the damage breaks the causal connection between the two. * * * There is no road that has not imperfections, and if a traveler is forced against one of these through the negligence of a third party it is from the latter, and not from the town, that redress must be sought." And see, also, 2 Thomp. Neg. 1089, § 6; Houfe v. Town of Fulton, 29 Wis. 296, 307; Cuff v. Railroad Co., 35 N. J. Law, 17, 32. In Rowell v. City of Lowell, 7 Gray, 100, in which the plaintiff, while passing...