Nickey v. Steuder

• Decision Date: 03 February 1905
• Docket Number: 20,551
• Citation: 73 N.E. 117,164 Ind. 189
• Parties: Nickey et al. v. Steuder
• Court: Indiana Supreme Court

73 N.E. 117

164 Ind. 189

Nickey et al. v. Steuder

No. 20,551

Supreme Court of Indiana

February 3, 1905

From Pike Circuit Court; E. A. Ely, Judge.

Action by Edward Steuder against Addison B. Nickey an others. From a judgment for plaintiff, rendered on a verdict of $ 1,600 defendants appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

J. H Miller and J. E. McCullough, for appellants.

W. E Cox, W. S. Hunter and J. W. Wilson, for appellee.

OPINION

Monks, J.

This action was brought by appellee to recover damages for injuries sustained by him while in the employ of appellants Nickey, Nickey & Nickey, who owned and operated a sawmill in which "sawlogs, trees and timber were manufactured into dimension stuff." The slabs were sawed into stove wood in the mill, and carried by a "carrier" a distance of fifty feet or more from said mill, and thrown upon the ground. Appellee at the time of his injury was engaged in throwing said stove wood back from where it was deposited by the carrier. Appellant Wessel, who had purchased some of said stove wood, entered upon the mill premises with a wagon for the purpose of hauling the same away, and while engaged in loading said stove wood threw a stick thereof against appellee and injured him. At the time appellee was injured he was under the age of fourteen years. A trial of said cause resulted in a verdict, and, over a separate motion for a new trial by each appellant, a judgment in favor of appellee.

The errors assigned call in question the sufficiency of each paragraph of the complaint and the action of the court in overruling each motion for a new trial.

The complaint was in two paragraphs, and said Nickeys and Wessel were made defendants. The right to recover against the Nickeys is based on §§ 7087b, 7087y Burns 1901, Acts 1899, p. 231, §§ 2, 25; the first of which provides: "No child under fourteen years of age shall be employed in any manufacturing or mercantile establishment, mine, quarry, laundry, renovating works, bakery or printing office within this State." Being section 2 of the act of 1899 (Acts 1899, p. 231, c. 142). Under § 7087y, supra, anyone violating said § 7087b is guilty of a misdemeanor, on conviction of which he shall be fined and may be imprisoned. The right to recover against appellant Wessel is predicated upon the common law.

The employment by Nickey, Nickey & Nickey of a person under the age of fourteen years in their sawmill, was a violation of §§ 7087b, 7087y, supra, and was negligence per se, and they were liable to such person for any injury of which that was the proximate cause, provided the injured party was not guilty of contributory negligence. 3 Elliott, Railroads, §§ 1155, 1156; 21 Am. and Eng. Ency. Law (2d ed.), 478, 480-482; 4 Thompson, Negligence (2d ed.), § 3827; Baltimore, etc., R. Co. v. Young (1896), 146 Ind. 374, 376, 45 N.E. 479, and cases cited; Baltimore, etc., R. Co. v. Peterson (1901), 156 Ind. 364, 372, 59 N.E. 1044, and cases cited; Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 574, 36 Am. Rep. 188; City of Logansport v. Kihm (1902), 159 Ind. 68, 71, 64 N.E. 595, and authorities cited.

In such a case the employer will not be liable merely because his act constituted a violation of law, but only if it proximately caused the injury complained of. Although the violation of such a statute is negligence per se, there must be a causal connection between the unlawful act and the injury, which must be shown in the pleading and by the proof, or the action fails. Such causal connection is interrupted by the interposition between the negligence and the injury of an independent, responsible human agency. Wharton, Negligence (2d ed.), §§ 134, 438; Cooley, Torts (2d ed.), 73-79, and notes; Bishop, Non-Contract Law, § 42; McGahan v. Indianapolis Nat. Gas Co. (1895), 140 Ind. 335, 29 L.R.A. 355, 49 Am. St. Rep. 199, 37 N.E. 601, and cases cited; New York, etc., R. Co. v. Perriguey (1894), 138 Ind. 414, and cases cited; Enochs v. Pittsburgh, etc., R. Co. (1896), 145 Ind. 635, 44 N.E. 658, and cases cited; Reid v. Evansville, etc., R. Co. (1894), 10 Ind.App. 385, 53 Am. St. Rep. 391, 35 N.E. 703; Davis v. Williams (1892), 4 Ind.App. 487, 31 N.E. 204; Mahogam v. Ward, 16 R.I. 479, 17 A. 860, 27 Am. St. Rep. 753, and cases cited; Cole v. German, etc., Loan Soc. (1903), 59 C. C. A. 593, 124 F. 113, 63 L.R.A. 416, and cases cited; Fowles v. Briggs (1898), 116 Mich. 425, 74 N.W. 1046, 40 L.R.A. 528, 72 Am. St. Rep. 537-539, and cases cited; Cuff v. Newark, etc., R. Co. (1870), 35 N.J.L. 17, 10 Am. Rep. 205; Mayer v. Thompson-Hutchison Bldg. Co. (1897), 116 Ala. 634, 22 So. 859; Proctor v. Jennings (1870), 6 Nev. 83, 3 Am. Rep. 240; Jenks v. Inhabitants, etc. (1858), 11 Gray 142; Tutein v. Hurley (1867), 98 Mass. 211, 93 Am. Dec. 154; Carter v. Towne (1870), 103 Mass. 507; Railway Co. v. Staley (1884), 41 Ohio St. 118, 52 Am. Rep. 74.

It was said in McGahan v. Indianapolis Nat. Gas Co., supra, at page 339: "The rule that an intervening responsible agent cuts off the line of causation from the original negligence has been many times recognized by this court. New York, etc., R. Co. v. Perriguey [1894], 138 Ind. 414, and cases cited."

The rule above stated is subject to the qualification, that if the intervening act is such as might reasonably have been foreseen or anticipated as the natural or probable result of the original negligence, the original negligence will, notwithstanding such intervening act, be regarded as the proximate cause of the injury. Wharton, Negligence (2d ed.), § 145; Enochs v. Pittsburgh, etc., R. Co., supra; New York, etc., R. Co. v. Perriguey, supra.

Wharton says: "Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? 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 can not be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured." Wharton, Negligence (2d ed.), § 134.

Bishop, Non-Contract Law, § 42, says: "If, after the cause in question has been in operation, some independent force comes in and produces an injury not its natural or probable effect, the author of the cause is not responsible."

Judge Cooley says: "If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote. * * * A writer on the subject has stated the rule in the following language: 'If the wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated as cause and effect to support an action. Addison, Torts, p. 6.' * * * If the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote." Cooley, Torts (2d ed.), 73, 74, 76, 77. See, also, Elliott v. Allegheny County Light Co. (1903), 204 Pa. 568, 54 A. 278; Borck v. Michigan Bolt, etc., Works (1896), 111 Mich. 129, 69 N.W. 254.

Tested by this rule, the negligence of appellants Nickey Nickey & Nickey in employing appellee in the sawmill was not the proximate cause of his injury, for, under the authorities cited, it can not be said that appellants, in the exercise of ordinary care, ought to have anticipated or foreseen as the natural or probable result of such employment that appellee would be...