The New York, Chicago And St. Louis Railroad Company v. Perriguey

• Decision Date: 19 May 1893
• Docket Number: 16,224
• Citation: 34 N.E. 233,138 Ind. 414
• Parties: The New York, Chicago and St. Louis Railroad Company v. Perriguey
• Court: Indiana Supreme Court

34 N.E. 233

138 Ind. 414

The New York, Chicago and St. Louis Railroad Company v. Perriguey

No. 16,224

Supreme Court of Indiana

May 19, 1893

Reported at: 138 Ind. 414 at 426.

From the Wells Circuit Court.

The judgment is reversed, with directions to sustain motion.

A Zollars, J. Morris, R. C. Bell, J. M. Barrett and S. L Morris, for appellant.

L. M Ninde, H. W. Ninde and W. L. Penfield, for appellee.

OPINION

Hackney, J.

The appellee sued for damages for injuries sustained in a collision of two engines upon the appellant's railway. He secured a verdict for twelve thousand dollars, the jury returning with the general verdict answers to special interrogatories propounded by each party.

The complaint alleged that the appellee and one Wilson were, respectively, fireman and engineer for appellant, and in charge of engine No. 167, drawing a caboose west out of Ft. Wayne, with instructions to run at the rate of forty miles per hour to Argos, where they should meet and pass train No. 41, drawn by engine No. 172, in charge of Ferris, as engineer; that said Ferris was eastbound from Chicago, with orders to run to Argos and lay up for No. 167; that the headlight of No. 172 was entirely useless by reason of certain defects, and that said Ferris was a reckless, dangerous, and unskilled engineer, both of which facts were well known to the appellant, the said defect for six weeks and the character of the engineer from the time of his employment, and which facts were unknown to the appellee. There are allegations as to the failure of the appellant to maintain a registry of the arrival and departure of trains at Argos, but appellee's counsel, in their brief, expressly deny any independent cause of negligence by reason of such failure, and we doubt the sufficiency of such allegations to have constituted a cause, proximate or remote, for the injury.

It is further alleged that Ferris ran No. 172 with his train to Argos, where he remained for some time, and, being informed by some one, and believing it true, that No. 167 had passed Argos, he pursued his journey; that it was night and said headlight furnished no light; that when he had gone from Argos about two miles, he saw No. 167 approaching, and stopped his train; that because of the absence of said headlight the appellee and the engineer on No. 167 could not see No. 172 in time to stop their engine and avoid a collision, and that, in the collision which followed, appellee's injuries were sustained.

The record contains numerous questions which have been presented by counsel for the parties with marked ability, but the primal point of contention arises upon the existence or nonexistence of the established negligence of the appellant as the proximate cause of the injury.

The established negligence of the appellant is in requiring its engineer, Ferris, to operate engine No. 172 with a defective headlight. This fact is found specially by the jury with other facts, some of which are as follows: Said Ferris had special orders to stop at Argos and remain until No. 167 passed; he did stop at Argos, but, in violation of his special order, pressed on in his journey with the defective engine. After leaving Argos two and three-quarter miles, and having observed the approach of No. 167, he stopped his engine when one and a quarter miles distant from No. 167. There were upon the front of No. 172 two green lights burning brightly, and on board were hand lamps to be placed in the headlight when it failed for any reason, which, when placed in the headlight, could be seen for the distance of five miles, but on this occasion were not so placed. From Argos eastward the track was straight and free from obstruction, with a decline in the grade for four miles. No. 167 came on at the rate of thirty miles an hour, her engineer and fireman having looked, but, failing to observe No. 172, the crash came.

There are findings as to how far the green lights could be seen, and there are questions as to whether the findings in that respect are supported by the evidence, but they go only to the question of contributory negligence, and are unnecessary to our decision.

It is also found that Ferris was not a competent and careful engineer, but it is further found that of this fact the company had no knowledge prior to the collision.

And it is found by the jury, as further stated in the answers to special interrogatories, that "such defective headlight" was "the proximate cause of said collision and the plaintiff's injury." Without stopping to analyze this finding, and to decide whether it is one within the province of the jury to make, we find that the conclusion stated is not supported by any evidence.

It is urged by the appellant, and conceded by the appellee, that Ferris and the appellee were fellow-servants; and if therefore the injury was the result of the negligence of Ferris, the appellee should not recover. The appellant concedes its own negligence in the use of the defective headlight, but insists that this defect was not the proximate cause of the injury, while the appellee insists that this was the proximate cause, and if not the immediate cause, it was concurrent in cause with the negligence of Ferris, and that, therefore, the company may not excuse its participancy in the wrong by asserting that it had a joint wrongdoer. Was the act of the appellant the proximate cause of appellee's injury? In Wharton on Negligence, section 73, is this quotation from Lord Bacon: "It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking for any further degree." Judge Cooley, in Lewis v. Flint, etc., R. W. Co., 54 Mich. 55, 19 N.W. 744, says: "As between the causes which precede the proximate cause, the law can not select one rather than any other as that to which the final consequence shall be attributed, and it stops at the proximate cause, because to go back of it would be to enter upon an investigation which would be both endless and useless."

It is too well settled to multiply citations of authority to the point that it is the immediate, and not the remote, cause of injury that creates the liability, but as there is no rule by which every case can be tested, and known to determine distinctly its class, in the order of causation, we find the difficulty in distinguishing between the immediate and the mediate, or the remote cause of the injury. Cases may illustrate, but definitions are not sufficiently explicit for practical application. In this case the act of the appellant was in directing an engineer to sidetrack at a way station, an engine known by it to be imperfectly lighted, and to there detain such engine until appellee's engine had passed. The use of the engine at the particular time, and under the particular circumstances, are inseparable from its condition, in determining the negligence of the appellant.

As we have said, it was found by the jury, and is conceded by the appellant, that it was negligence to place the defectively lighted engine upon the main track, in the darkness of the night, without the use of the handlamps, but it must be remembered that to have so placed it was in violation of the orders of the appellant. So placing the engine was the immediate cause of the collision. That was the negligence of Ferris. The absence of light accounts for the appellee's inability to avoid the collision. Not the absence of a particular light, the headlight, any more than the absence of the handlamp in the headlight, which handlamp was found sufficient to be seen five miles distant. The absence of the handlamp was due to the carelessness only of Ferris, and not to the appellant. It probably is true, as appellee argues, that if the headlight had not been defective, but had been in good order and burning brightly, the collision would not have happened. It is equally true, that if No. 172 had not been on the trip the collision would not have occurred.

Judge Ray, in his recent work on Negligence of Imposed Duties to Passengers, says: "Where the concurring cause is the independent, wrongful act of a responsible person, such act arrests causation, being regarded as the proximate cause of the injury, the original negligence being considered merely as its remote cause. As, in the law it is the proximate and not the remote cause which is regarded, he who is guilty of the original negligence is not chargeable, but redress must be sought from him who directly caused the injury."

Again he states that "In civil cases, a defendant is not responsible for results, except such as are natural, proximate and direct, if such consequences are caused by the acts of others, so operating on his act as to produce the injurious consequences, then he is not liable."

These statements of the rule are fortified by many authorities, as may be seen by reference to that work, pp. 669, 670.

In Milwaukee, etc., Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256, Mr. Justice Strong states the rule in this manner: "The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? * * It is generally held, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."

He states...