Western Ry. of Alabama v. Mutch

• Decision Date: 01 December 1892
• Citation: 97 Ala. 194,11 So. 894
• Parties: WESTERN RAILWAY OF ALABAMA v. MUTCH.
• Court: Alabama Supreme Court

11 So. 894

97 Ala. 194

WESTERN RAILWAY OF ALABAMA v. MUTCH.

Supreme Court of Alabama

December 1, 1892

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Action by George Mutch, administrator of James Thomas Mutch, against the Western Railway of Alabama, to recover for the alleged negligent killing of his intestate by defendant. Judgment for plaintiff. Defendant appeals. Reversed.

After the rendition of the judgment for plaintiff, defendant moved the court for a new trial on the following grounds: (1) Because the jury found contrary to the evidence; (2) because the evidence did not authorize a verdict against the defendant; (3) because Mr. Augustus Barnes, one of plaintiff's attorneys, in his argument to the jury, in speaking of defendant's employes who were witnesses in this case, said "that he would not say, as a north Alabama attorney had said, that they 'testified with halters around their necks;' but he would say that they testified with a conscious regard to their position." The court overruled the motion for a new trial, and the defendant duly excepted. On this appeal, prosecuted by the defendant, there are many assignments of error, in which were included the overruling of defendant's motions for a new trial, but under the opinion it is deemed unnecessary to notice them in detail.

Geo. P. Harrison and R. F. Ligon, Jr., for appellant.

A & R. B. Barnes, W. J. Samford, and J. M Chilton, for appellee.

STONE C.J.

The plaintiff, George Mutch, was a resident of Opelika. His son James Mutch, was 9 1/2 years old, well grown and developed for his age, and, in intelligence and brightness, was above the average of boys of his age. He went at large without being attended by a nurse or protector, and was attending school. The Western Railway of Alabama runs through Opelika, and has a station and depot in that city or town. There was an ordinance of force in Opelika which made it unlawful to run a train of cars within the corporate limits at a higher rate of speed than four miles an hour, and imposing a penalty for its violation. A freight train of the railroad was coming into Opelika on an afternoon in March, 1889. It had box cars, and attached to the side of one of them was a ladder, placed there to enable brakemen to reach the top of the car. The little boy, James, having placed himself at the side of the track, attempted to seize the ladder as it passed him, that he might climb up on it, and thus enjoy a ride. He did succeed in catching a round of the ladder, but, in attempting to ascend, he missed his footing, fell under the train, and was so injured and crushed that he died of the wounds. Up to this point there is no conflict or uncertainty in the testimony. The present suit was brought against the railroad, and plaintiff seeks to recover damages from it for this alleged negligent killing of his intestate. The negligence charged (and there is no other pretended, or attempted to be shown) is that the train was being moved at a greater rate of speed than four miles an hour. Some of plaintiff's witnesses testified that it was moving at the rate of six or seven miles an hour. On the other hand, defendant's witnesses placed the speed, some as low as three, and none above four, miles an hour. This was not the first time intestate had attempted to spring on moving trains, and he had been more than once cautioned against such attempts. Assuming that the speed of the train was in excess of four miles an hour, was there a causal connection between such breach of duty on the part of the railroad company and the injury done to plaintiff's intestate?

Persons who perpetrate torts are, as a rule, responsible, and only responsible, for the proximate consequences of the wrongs they commit. In other words, unless the tort be the proximate cause of the injury complained of, there is no legal accountability. In that able and valuable work, 16 Amer. &amp Eng. Enc. Law, 436, is this language: "A 'proximate cause' may be defined as that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred; and it is laid down in many cases, and by leading text writers, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it was such as might or ought to have been foreseen, in the light of the attending circumstances." On page 431 of the same volume it is said: "To constitute actionable negligence, there must be not only a causal connection between the negligence complained of and the injury suffered, but the connection must be by a natural and unbroken sequence, without intervening efficient causes; so that, but for the negligence of the defendant, the injury would not have occurred. It must not only be a cause, but it must be the proximate-that is, the direct and immediate, efficient-cause of the injury." That philosophic law writer Dr. Wharton, (Law of Negligence, § 75,) expresses the principle as follows: "If the consequence flows from any particular negligence, according to ordinary natural sequence, without the intervention of any human agency, then such sequence, whether foreseen as probable, or unforeseen, is imputable to the negligence." Quoting from Chief Baron POLLOCK with apparent approval, he (in section 78) says: "I entertain considerable doubt whether a person who has been guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated. I am inclined to consider the rule of law to be this: That a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur." In the same section he quotes approvingly the following language from Lord CAMPBELL: "If the wrong and the legal damage are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, the wrong and the damage are not sufficiently conjoined or concatenated, as cause and effect, to support an action." In Shearman & Redfield's Law of Negligence (section 26) the principle is thus stated: "The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred." the authorities from which we have quoted are everywhere regarded as standard. What they assert is but the condensation of the utterances of a very great number of the highest judicial tribunals, wherever the principles of the common law prevail. See 16 Amer. & Eng. Enc. Law, 428, 429; Railway Co. v. Kellogg, 94 U.S. 469; Herring v. Skaggs, 62 Ala. 180; Daughtery v. Telegraph Co., 75 Ala. 168. Lynch v. Nurdin, 1 Q. B. (N. S.) 29, 41 E. C. L. 422, is the strongest of the cases relied on in support of the present action. The injury in that case occurred in...