Pugh v. Texarkana Light & Traction Co.

• Decision Date: 16 March 1908
• Citation: 109 S.W. 1019,86 Ark. 36
• Parties: PUGH v. TEXARKANA LIGHT & TRACTION COMPANY and PILLOW v. COLLEGE HILL LIGHT & TRACTION COMPANY
• Court: Arkansas Supreme Court

109 S.W. 1019

86 Ark. 36

PUGH v. TEXARKANA LIGHT & TRACTION COMPANYandPILLOW v. COLLEGE HILL LIGHT & TRACTION COMPANY

Supreme Court of Arkansas

March 16, 1908

Appeals from Miller Circuit Court; (1)Antonio B. Grace Judge, on Exchange of Circuits; (2)Jacob M. Carter, Judge reversed as to Texarkana Light & Traction Company; affirmed as to College Hill Light & Traction Company.

Judgment reversed cause remanded for new trial.

Dan W. Jones and Scott & Head, for appellants.

I.While it is held that street railways are not an additional burden of servitude upon the streets, yet the theory upon which this adjudication is based is that they are not in fact obstructions, that, after being erected, the public use of the streets in the ordinary way of travel is not obstructed.In this case the street railway company had appropriated to its exclusive use, by the erection of the bridge or trestle causing the injury, that part of Broad Street which was then occupied by the bridge.This bridge was of such a nature that no carriage could cross the track at that point at right angles therewith, and it likewise rendered wholly impracticable the longitudinal use of the street by the public in vehicles.The public has a right to the use of all of the street and every part thereof, and any obstruction which permanently withdraws from the public this right is a nuisance.1 Wood on Nuisances, §§ 258, 259, 260, 266, 269, 274, 285, 301; Ray on Imp. Duties Personal, 243, 252;1 Joyce on Elec. Law, 2 Ed. §§ 379, 381;30 S.W. 533;48 N.W. 1007;Elliott, Roads & Streets, § 779;67 N.E. 921;93 S.W. 1057;1 Thompson, Neg. §§ 1233, 1234;2 Id.§ 1347;23 A. 281;1 P. 253;37 P. 1012;33 F. 320;29 A. 1005; 58 S. W: 508;11 S.W. 946;2 Wood, Railroads, 970, § 269 note 1, 976;19 S.W. 366;27 S.W. 918;27 S.W. 920;37 A. 119;1 Lewis, Em. Dom., 2 Ed., § 117;11 S.W. 943; 54 Ark. 131;68 Ark. 291;79 Ark. 490;61 Ark. 141.He who erects, as also he who maintains, a nuisance is liable for injuries resulting therefrom.2 Cooley on Torts, 1282;1 Id. 250-1; Ray on Imp. Duties, Personal, 53; Webb's Pollock, Torts, 259, 530, note;2 Wood on Nuisances, § 838.Aside from the question of the culvert being a nuisance, there was evidence from which the jury might have found that the rails of the street railway west of the bridge were elevated to such an extent as to be a nuisance.A nuisance can not be justified on the ground of necessity.42 N.W. 365;59 F. 237;35 N.W. 572.

The culvert not being authorized by the franchise, its construction was a nuisance.1 Wood on Nuisances, § 300;50 Ill. 210;36 A. 73;9 So. 525;68 P. 360;31 N.W. 327;27 Am. & Eng. Enc. of Law (2 Ed.), 94.

2.Where two or more acts of negligence concur in producing an injury, each of said acts is, in a legal sense, a proximate cause.

(a) If a person do an act which is wrong per se, or in the nature of a public nuisance, he becomes, in respect to it, an insurer of the public, and is liable for any injury that may happen in consequence of it, to a person in the exercise of ordinary care, irrespective of any question as to the degree of skill or diligence exercised by himself or his agents or servants to prevent such injury.1 Thompson, Negligence, § 60, p. 63;1 Cooley, Torts, 101;82 Ind. 426.

(b.)As to the runaway horse being the proximate cause: 61 Ark. 141;79 Ark. 490;37 P. 1012;1 Sutherland on Damages(3 Ed.), § 26 p. 80;5 Thompson, Negligence, §§ 6089-6091;17 A. 249;18 Am. Rep. 239;43 A. 143.

(c.)It is not necessary to show that the negligence complained of was the nearest cause in point of time.It may be remote in point of time, and yet be proximate in point of causation.4 Otto, 469, 24 Law.Ed. 256;111 U.S. 228;166 U.S. 521;1 Sutherland, Damages, § 39;1 Thompson Negligence, § 75;3 Id.§ 2779;Watson, Damages, § 160;61 Ark. 381;73 Ark. 112;75 Ark. 133;37 P. 721;22 N.E. 14; 96 N.Y. 264;65 N.W. 676;41 P. 995;36 N.Y. 39;69 S.W. 734;42 P. 42;61 S.W. 678; 53 Mo. 290; 2 S.W. 439;26 A. 189;18 Am. Rep. 239;56 N.J.L. 370;66 S.W. 609;32 N.E. 285;46 N.E. 17;116 Ga. 152;68 Ga. 572.

(d.)It is not necessary, in order to fix the liability upon the defendants, that they should have anticipated the particular injury that resulted, or injury in the precise manner that it occured.It is sufficient if it appears to have been a natural and probable consequence, and if they could have anticipated that some injury would occur.1 Thompson, Negligence, § 59, p. 62 and note;Watson on Damages, §§ 150-154;1 Cooley on Torts, 125-7-8;28 N.E. 446;40 Am. Rep. 230;69 N.W. 640;48 N.W. 559;93 S.W. 951;89 P. 715;42 N.W. 555;12 P. 219;86 N.W. 76;101 S.W. 1025.

3.The College Hill Company was the holder of the legal title to the street railroad.It had not leased the road to the Texarkana Company, and is not absolved from liability for the negligence of the employes of the latter company.No deed had been tendered, nor was one passed until long after the injury.17 Am. & Eng. Enc. of Law (1 Ed.), 896 et seq.;67 Ark. 123;28 S.C. 401.

William H. Arnold, for appellees.

1.The evidence is conclusive that at the time the track was delivered over to the Texarkana Light & Traction Company it was in good condition; but, even if there had been defects in the construction of the road, the liability of the College Hill Light & Traction Company ceased when under its contract of sale, it delivered the property to, and it was accepted by, the first named company.1 Thompson, Negligence, § 686;26 L. R. A.(Pa.), 504;131 Pa. 416;147 Pa.St. 199.The ordinance expressly shows that the franchise was transferable; moreover, there is statutory authority for such transfer.Kirby's Digest, § 886.When a lease or sale of a street railroad is authorized by law, the lessee or vendee is alone liable for the negligence of its operation.193 Pa.St. 229; Nellis on Street Surface Railroads, 275.This court in the Daniels case, 68 Ark. 171, seems to have settled the law contrary to the liability of the College Hill Company.See also100 S.W. 759; 76 Ark. 352;114 F. 100;55 Ark. 510;196 U.S. 152;87 S.W. 995;89 S.W. 75.

2.True, the precise injury need not be anticipated, in order that a party may be held liable for his acts of negligence; yet it must be some like injury and some like intervening agency that did occur, to render the act of negligence the proximate cause.Where there is an intervening agency which could not have been anticipated as the natural and probable result of an act of negligence, such negligence can not be treated as an efficient concurring cause, but will be considered as a remote and not a proximate cause.55 Ark. 510;139 U.S. 223;21 Am. & Eng. Enc. of Law, 493;90 Tex. 223;124 F. 113;100 S.W.(Ark.), 764;24 U.S.App. 17;95 U.S. 117;55 F. 949;94 U.S. 469;85 Pa.St. 293;10 Am. Rep. 217;88 Hun, 10;52 Am. Rep. 74;49 N.Y.S. 406;66 Ark. 68;Wharton on Negligence, § 134;17 N.E. 200;69 Ark. 402;76 Ark. 430.

3.The building of the trestle was not an act of negligence; but, even if it had been, it could not reasonably have been anticipated as a natural and probable consequence that there would be a runaway down Beech Street to Broad which would collide with the bridge and produce an injury similar to that complained of in these cases.56 Ark. 387;101 F. 915;9 A. 430;106 Mich. 512;107 Mich. 627; 57 N.W. 117.On the question of the runaway horse as the proximate cause of injury: 150 Pa.St. 145;97 Mass. 258;Id. 266;98 Mass. 587;100 Mass. 49;30 Wis. 250;32 Me. 46;38 Me. 204;42 Me. 346;51 Me. 127;127 Pa.St. 184;122 Pa.St. 601;98 N.W. 934;71 N.W. 888;74 N.W. 815;20 N.E. 105;58 A. 283;9 A. 430;99 Wis. 361;103 Wis. 66;10 Am. Rep. 217;39 Am. Rep. 603;75 N.Y. 605.

OPINION

BATTLE, J.

The plaintiffs in these cases, who are appellants in this court, in separate actions, sued for damages on account of an accident which occurred in the city of Texarkana, in this State, on the fourth day of July, 1904, as follows: Plaintiffs and others were riding in a two-seated surrey, and the horse drawing the same became frightened on Beech Street, and ran down grade three blocks and across two streets into Broad Street and upon a culvert in the street railway, which was operated by the Texarkana Light & Traction Company in that street.The surrey was thereupon overturned, and the occupants were thrown out, and some of them, if not all, were thrown upon the railway.A street car passing at that time ran upon those upon the railway, killing two, and crushing the feet or part of the legs of Maude E. Pillow, one of the plaintiffs.Mrs. Bayne Pugh, the other plaintiff, was severely bruised.

Mrs Bayne Pugh alleged in her complaint "that the College Hill Light & Traction Company was, on the 4th day of July, 1904, the owner of an electric railway, then built and constructed along Broad Street past Beech Street in the city of Texarkana, in this State, from the intersection of Broad and Hazel streets to College Hill about two miles in length, and at the same time and for some time previous the Texarkana Light & Traction Company was operating said line of railway under some arrangement or agreement between said defendants, the nature of which was unknown to the plaintiff.That on the said 4th day of July, 1904, the plaintiff was riding in a two-seated carriage or surrey, accompanied with relatives and friends, when in passing along Beech Street, at or near Sixth Street, going toward said Broad Street, the horse drawing said surrey became frightened at the explosion of a fire cracker, or some other cause unknown to plaintiff, and proceeded to run along said Beech Street, which descends toward Broad Street, and the driver was unable fully to check or control said...