Shippers' Compress & Warehouse Co. v. Davidson

• Decision Date: 20 April 1904
• Citation: 80 S.W. 1032
• Parties: SHIPPERS' COMPRESS & WAREHOUSE CO. v. DAVIDSON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 1032

80 S.W. 1032

SHIPPERS' COMPRESS & WAREHOUSE CO. v. DAVIDSON et al.^*

Court of Civil Appeals of Texas.

April 20, 1904.

Appeal from District Court, Kaufman County; J. E. Dillard, Judge.

Action by Leona Davidson and others against the Shippers' Compress & Warehouse Company. From a judgment for plaintiffs, defendant appeals. Modified.

A. M. Carter, for appellant. Thos. R. Bond and Wm. H. Allen, for appellees.

FLY, J.

Leona Davidson, describing herself as the surviving wife of W. I. Davidson, instituted this suit in her own behalf, and as the next friend of her minor children, Beulah, Milton, Clifford, and Ira Davidson, to recover damages from appellant, incurred by reason of the death, through negligence, of said W. I. Davidson. Appellant filed general and special demurrers, and answered, denying that its negligence had caused the death of W. I. Davidson, but, if it resulted from negligence at all, it was that of some person for which appellant was not liable. Contributory negligence was not pleaded. Trial by jury resulted in a verdict in favor of appellees for $4,500.

The facts show that W. I. Davidson came to his death on December 17, 1901, through the negligence of appellant, and that appellees, his wife and children, were damaged in the sum found by the jury. A full statement of our conclusions of fact will be found herein, in connection with the discussion of the assignments of error.

Through the medium of the first and second assignments of error, appellant claims that the evidence failed to show that any negligence of appellant was the proximate cause of the death of W. I. Davidson, but that it shows that the negligence of appellant was not the direct and proximate cause of the injury and damages sued for, and the jury should have been instructed to return a verdict for appellant.

Grove street runs east and west through the city of Terrell, and it was agreed that it was a public street, and 80 feet wide. Appellant was on December 17, 1901, engaged in the business of compressing cotton bales. It had a platform on the north side of Grove street that was about 6 feet high, and another on the south side of the street that was about 1 foot high. A gangway had been built from the southwest corner of the north platform to the south platform, which ran on an incline downwards to about the center of the street, to a bank or dump of earth constructed by appellant, which ran on a level for 15 or 20 feet, and then inclined upwards in order to connect with the south platform. The gangway was about 7 feet wide. Only a space of 15 or 20 feet was left in the street for the passage of vehicles, and those traveling along Grove street, in order to cross the gangway, if going west, would have to drive up a slight incline and pass over the gangway, and those going east would have to pass over the gangway in the same manner, except that they would go down the incline. The superintendent of the compress company was in direct and immediate control of the compress, and superintended the work. Cotton was placed on the north platform after being weighed, and was then transferred on trucks by negroes over the gangway to the south platform, where it was compressed. In transferring the cotton across the street, the trucks would move rapidly down the incline and across the street. The gangway blocked up the street, with the exception of 15 or 20 feet, and travel on horseback or in vehicles was confined to this space. The gangway had been built and was being used without the authority of the city of Terrell.

The use of the street by appellant in the manner that it was used was unwarranted and in flagrant disregard of the rights of the public, and in open violation of the laws of the state of Texas. Pen. Code 1895, art. 480. The building of the gangway, being an obstruction of the street and a violation of a statute of the state, was negligence per se; and, if such negligence was the direct and proximate cause of the injury and death of W. I. Davidson, appellant was liable for the damages resulting therefrom. The question then of prime importance is, was the erection of the obstruction in the street the direct and proximate cause of the death of W. I. Davidson? The proximate cause is not necessarily the one nearest to the event, but the primary cause may be the one proximately responsible for the result, although it may operate through one or more successive instruments. If the primary cause was so linked and bound to the events succeeding it that all together they create and become one continuous whole—the one event so operating upon the other as to tie the result to the primary cause—the latter will be the proximate cause of the injury. If there is some new and independent cause, disconnected from the first or original cause, operating in itself, which intervenes to produce the result, the chain of sequence will be broken, and the primary fault cannot be held to be the direct and proximate cause of the injury. As said in Gonzales v. Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17: "By `proximate cause' we do not mean the last cause, or nearest act to the injury, but such act, wanting in ordinary care, as actually aided in producing the injury as a direct and existing cause. It need not be the sole cause, but it must be a concurring cause, such as might reasonably have been contemplated as involving the result, under the attending circumstances." In the case of Sewing Mach. Co. v. Richter (Ind. App.) 28 N. E. 446, the matter is clearly and forcibly stated as follows: "Intervening agencies sometimes interrupt the current of responsible connection between negligent acts and injuries, but, as a rule, these agencies, in order to accomplish such result, must entirely supersede the original culpable act, and be in themselves responsible for the injury, and must be of such a character that they could not have been foreseen or anticipated by the wrongdoer. If it required both agencies to produce the result, or if both contributed thereto as concurrent forces, the presence and assistance of one will not exculpate the other, because it would still be the efficient cause of the injury." In discussing the rule as to determining proximate cause, the federal Supreme Court, in Ins. Co. v. Tweed, 7 Wall. 52, 19 L. Ed. 65, said: "One of the most valuable criteria furnished us by the authorities is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened, of itself sufficient as the cause of the misfortune, the other must be considered as too remote."

The enunciation of the general rule as to proximate cause is not so difficult a matter as the application of the rule to the facts of the particular case, and the seeming differences between decisions on the subject arise from that difficulty, and not from the formulation of the rule. The facts in this case, however, are simple, and we think the application will be attended with little difficulty.

On the morning of December 17, 1901, W. I. Davidson, with his little daughter, was driving his horse attached to his buggy into the city of Terrell, and started to drive across the gangway, but stopped on account of a negro passing with a bale of cotton on a truck. After the negro had passed, the horse started over the dump or embankment that appellant had built in the street; and about the time the buggy got on top of the gangway, going west, another negro started down the gangway with another bale of cotton on a truck, from the north platform, and went on a run down past and in close proximity to the hind wheels of the buggy. As soon as the truck started down, the horse took fright at the noise made by it, and ran and turned the buggy over. Davidson and his daughter were thrown out, and the former received injuries from which he afterwards died. The curtains of the buggy were up, so as to prevent deceased from seeing the negro approaching with the truck.

If appellant is liable for damages resulting from the death of W. I. Davidson, it must arise from its own wrongful act, negligence, unskillfulness, or default, and not from any negligence upon the part of its employés. Section 2, art. 3017, Rev. St. 1895. It is the contention of appellant that the facts of this case above enumerated show that the death of W. I. Davidson was caused through the negligence of the negro with the truck, and that appellant is not liable for damages, no matter if it had been guilty of negligence in constructing the gangway across the street. As before stated, appellant violated the law of Texas in building the gangway across the street, and the accident would never have occurred but for that unlawful act. The act of moving the truck rapidly down the gangway, producing the noise that frightened the horse, was inseparably connected with the unlawful structure. Without the gangway, the accident was impossible. It required the gangway, as well as the moving of the truck, to produce the result. They were active concurring forces producing the result. The intervening act of the negro in rolling the truck immediately behind the buggy and frightening the horse did not supersede the original unlawful act in putting the obstruction in the street. If the gangway had not been on the street, the negro could not have run the truck loaded with cotton at such a rate of speed across the street as to create...