Strange v. Bodcaw Lumber Co.

• Decision Date: 02 July 1906
• Citation: 96 S.W. 152,79 Ark. 490
• Parties: STRANGE v. BODCAW LUMBER COMPANY
• Court: Arkansas Supreme Court

96 S.W. 152

79 Ark. 490

STRANGE v. BODCAW LUMBER COMPANY

Supreme Court of Arkansas

July 2, 1906

Appeal from Lafayette Circuit Court; Charles W. Smith, Judge reversed.

STATEMENT BY THE COURT.

The facts in this case are stated in the opinion. On the trial the circuit judge gave among other instructions the following over the objection of the plaintiff, and to the giving of each of which the plaintiff duly saved exceptions at the time:

"5. The jury are instructed that, though they should believe from a preponderance of the evidence that there were defects in said roadway, and that the alleged accident was rendered possible thereby, yet, if they believe that the proximate cause of said accident was that said horse became frightened at a pair of goats driven to a sled by one Leo Couch, and that, but for said horse becoming so frightened at said goats so driven to a sled, said accident would not have happened your verdict should be for the defendant.

"7. The jury are instructed that if they believe from a preponderance of the testimony that the roadway where said accident is alleged to have happened was in a reasonably good and safe condition, and that, but for the fact that said horse became frightened at the pair of goats and sled driven by Leo Couch, said horse and buggy would have gone safely over said roadway without accident, then their verdict should be for the defendant."

Judgment reversed cause remanded.

Searcy & Parks and W. E. Atkinson, for appellant.

1. The erection of the pond against and on both sides of the road is admitted, and that it rendered travel dangerous is proved. It is a public nuisance. 1 Wood, Nuisance, § 248; Ib §§ 74, 293, 266, 271, 345, 273-8, 290; 2 Ib. § 680; Cooley on Torts, 660; Ib. 619.

2. If the highway was rendered dangerous by the erection of the pond, one of the things reasonably to be expected and guarded against was the shying of horses. 2 Cush. 608; 20 S.E. 565.

3. The first instruction given for appellee erred in the enumeration of allegations, including therein as material, allegations which were not charged in the complaint, others that were admitted, and others that were not material, while it ignores the real cause of action.

4. It was also error to instruct the jury to find for the defendant if they found the accident was caused, not by defects in the roadway, but because the horse became frightened, etc., and backed off the roadway into the water. 1 Jaggard on Torts 68; Ib. 70; 8 C. C. A. 109, 114; Cooley on Torts, 70; 16 L. R. A. 197.

Moore & Moore, for appellee.

1. Where two or more causes operate, resulting in an accident, the proximate cause must be understood to be that which in a natural sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred. If it can not be said that the result would inevitably have occurred by reason of defendant's negligence, plaintiff has not made out his case. 1 Shearm. & Redf. on Neg. § 3 and note 3. See further as to proximate cause, cases in point, 9 B. & S. 303; Webb's Pollock on Torts, 46; 12 L. R. A. 432; 16 Ib. 106; 18 Ib. 100; 51 Me. 127; 38 Me. 207; 97 Mass. 266; 100 Mass. 49; 8 L. R. A. 82; 6 L. R. A. 194; 65 Tex. 274; 34 S.E. 778; 7 Wall. (U. S.), 52; 56 Ark. 287; Ib. 390; 58 Ark. 157.

2. The instructions given for appellee are on the theory that if the proximate cause of the injury was not the condition of the roadway nor the non-protection of the traveling public, but some cause separate therefrom, the verdict should be for the defendant. This is the law.

3. Even if some of the instructions are considered as surplusage, yet the evidence sustains the verdict, and the judgment should be affirmed. 54 Ark. 289; 56 Ark. 594; 62 Ark. 289.

OPINION

RIDDICK, J., (after stating the facts.)

This is an action by F. A. Strange against the Bodcaw Lumber Company to recover $ 100 of the company as damages for causing the death of plaintiff's horse.

The company owns a sawmill plant near the town of Stamps in Lafayette County of this State. The town was west of the mill plant, and a public road that entered the town from the east passed not far from the mill and crossed a small stream called Crooked Creek before reaching the town. 1893 the lumber company made a large pond by constructing a dam across the valley of this creek. The public road crossed the road above where the dam was constructed. To prevent the water from overflowing the public road, the road was straightened, and a roadbed several feet high was constructed across the valley of this stream with a bridge across the channel of the creek. This work was done by the lumber company with the consent of the county judge and with the assistance of the road overseer. This elevated roadbed was about twenty feet wide, and near the creek was over ten feet high. After the company had erected its dam across the creek the water backed up around this public road, and at places was eight or ten feet deep on both sides of the road. When the roadbed was first constructed, posts with connecting rails were placed along the edge of the roadbed to prevent wagons and teams from running off the dump into the pond. But, as the roadbed was raised from time to time by placing loads of dirt and sawdust thereon, the surface of the roadbed was finally raised about the rails, so that nothing but the posts were left above the surface of the roadway. After this roadbed was constructed, it was under the control of the road overseer as one of the public roads of the county until, by an extension of the limits of the town of Stamps, it came within the limits of the town, and passed to the control of town authorities as a public street.

On the 5th of September, 1904, while this road or street was in this condition, Alvin Strange, a brother of the plaintiff, drove the horse of plaintiff to the town of Stamps to attend services at a church. In the buggy with him were his sister and another young lady. It was night, and while they were crossing this road and approaching the bridge over the creek the horse became frightened at a pair of goats hitched to a sled which a boy had driven upon the bridge. The horse, on being frightened by the goats, began to back, and before he could be stopped he backed the buggy over the side of the roadbed into the water, which was at that place about ten feet deep. The occupants of the buggy got out and escaped, but the horse was drowned. The plaintiff, as the owner of the horse, brought this action against the mill company, as before stated, to recover damages for the death of his horse. The jury returned a verdict for the defendant, and judgment was rendered accordingly, and the appeal taken by the plaintiff brings the case before us for review.

We will state at the outset that the defendant can not be held responsible for the condition of the roadway itself. It can not be held responsible for the fact that the road at this point was elevated on an embankment several feet high, for this was a public road, and defendant had no right to reduce the height of this embankment or to change it. In order for the plaintiff to recover, he must show that the water which defendant placed around and against this road was so dangerous to travel that barriers were necessary to protect the public against the danger, and that the failure of the defendant to erect them caused the injury.

The law is now well settled that it is unlawful to make an excavation or to put a dangerous obstruction of any kind adjoining a public highway, and leave it in a condition to endanger the safety of those who are traveling thereon and who themselves are in the exercise of ordinary care. When one makes an excavation of that kind on his own grounds adjoining the public highway, he should exercise due care to protect the public against the danger to accidents caused by such excavations, and, if necessary, should erect a fence or guard rails for that purpose. This question was discussed and the law clearly stated in the case of Beck v. Carter, 68 N.Y. 283. See also Barnes v. Ward, 9 C. B. (Eng.), 392; Hadley v. Taylor, L. R. 1 C. P. 53; 1 Wood on Nuisances (3 Ed.), § 271, and cases cited.

The rule would be the same if one,...