Mayor v. Dykes

• Decision Date: 28 July 1898
• Parties: MAYOR, ETC., OF CITY OF MACON et al. v. DYKES.
• Court: Georgia Supreme Court

31 S.E. 443

103 Ga. 847

MAYOR, ETC., OF CITY OF MACON et al.

v.DYKES.

Supreme Court of Georgia.

July 28, 1898.

Neglioence—Proximate Cause—Action against City.

The negligence of the defendants not being the proximate cause of the plaintiff's injuries, he was not entitled to recover, and, consequently, the judgment in his favor was contrary to law.

Little, J., dissenting.

(Syllabus by the Court.)

Error from city court of Macon; John P. Ross, Judge.

Action by T. J. Dykes against the mayor and council of the city of Macon and the Macon Consolidated Street-Railway Company. Judgment for plaintiff, and defendants bring error. Reversed.

Minter, Wimberly, Bacon, Miller & Branson, for plaintiffs in error.

Dessan, Bartlett & Ellis and Chambers & Jordan, for defendant in error.

FISH, J. T. J. Dykes, plaintiff below, sued the mayor and council of the city of Macon and the Macon Consolidated Street-Railway Company for personal injuries. The undisputed facts proven at the trial were that plaintiff, while driving a horse attached to a two-wheeled road cart along a street in Macon upon which the railroad company had a track, attempted to drive, while the horse was in a walk, across such track at an angle of about 45 degrees. When the wheels of his cart came in contact with the iron rails of the track, the wheels slipped along the rails, and made a scraping noise. The horse immediately began to kick, jump, and run, and became wholly unmanageable. He ran at full speed along the street for some 150 feet, when the cart collided with a wagon, and plaintiff was violently thrown to the ground, and seriously injured. The height of the rails of the track above the surface of the street was variously estimated by the witnesses to be from two to four inches. An ordinance of the city made it unlawful for any street-railroad company to construct or place any track In the streets of the city, the rails of which should be above the level of the street. Plaintiff testified in reference to his horse: "After driving him nearly a year, I thought [he] was a reliable horse. I had driven him almost every day to the cart and buggy, and ploughed him some. * * * I have seen him under conditions in which horses disposed to kick would kick, and he never attempted to do so. He has made several attempts to run away, but was easily controlled, very biddable. He had never gotten from under my control at all. I was not afraid of him. He was a high-strung blooded horse, but was not unreasonably frightened. I would rather say he was not easily frightened at all. He was an ordinarily gentle horse. I have had ladies to drive him. I suppose he is about as gentle as the average run of horses. * * * He was what I considered a reasonably safe horse. * * * I didn't regard him as a family horse. * * * He made some few breaks; nothing that I considered at all alarming." The accident occurred on the 26th of August, and the horse had been driven to the road cart with two persons in it for a distance of 26 miles in six or six and a half hours immediately preceding the accident. The case was tried by the judge of the city court without the intervention of a jury, and judgment rendered against the defendants. Upon the overruling of their motion for a new trial they excepted.

Assuming that the defendants were guilty of negligence, the controlling question in the case is, was their negligence the proximate cause of plaintiff's injuries? There seems to be no absolutely consistent rule to guide us in determining the matter, and each case has been made by the courts to largely depend upon its own facts. The most generally accepted theory of causation, however, is that of natural and probable consequences (1 Jag. Torts, p. 74, and cases cited; Gilson v. Canal Co. (Vt.) 36 Am. St. Rep. 802, and cases cited on page 809 (s. c. 26 Atl. 70); the rule being that, in order to recover for an injury alleged to have resulted from the negligence of another, the injury must be the natural and probable consequence of the negligence; or, as otherwise stated, the wrong and the resulting damage must be known by common experience to be naturally and usually in sequence. The damage, according to the usual course of events, must follow from the wrong. Gerhard v. Bates, 2 El. & Bl. 490; Add. Torts, 6; Cooley, Torts, 69. The principle in this state seems to be substantially the same. If damages are traceable to an act of negligence, but are not its legal or material consequence, or if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery. Civ. Code, §§ 3912, 3913. This rule of remoteness is applicable both to the damages which are the result of the act and to the cause of the act. Rucker v. Manufacturing Co., 54 Ga. 84. "It is not only true that damages which are the direct product of the act are the limit, but that only such acts as preponderate largely in producing even a direct result are the subject of suit." Id. "The law—we think, wisely-only gives an action for the prime, the leading, effective cause." Id. See, also, Belding v. Johnson, 86 Ga. 177, 12 S. E. 304...