55 F. 949 | 8th Cir. | 1893
The Chicago, St. Paul, Minneapolis & Omaha Railway Company brings this writ of error to reverse a judgment of $5,000 recovered by Fred. P. Elliott, the defendant in error, who was the plaintiff below, for personal injuries which he alleges resulted' to him from the negligence of the company. The railway company had made a contract with J. B. Sutphin & Co., a copartnership, to transport 13 car loads of sheep from West Superior, Wis., to Chicago, HI., and to carry the plaintiff, who was their foreman in charge of the sheep, free. Spooner is a station 'on the defendant’s railroad between West Superior and Chicago, about 60 miles south of West Superior. It is the head of a division. There is a railroad yard at this point, and the custom of the company is to change the crews, eugines, and cabooses of freight trains at this station. Altoona is a station on the defendant’s railroad about 100 miles south of Spooner. The train which carried the sheep left West Superior at 11 o’clock in the forenoon on January 28,1891. It then consisted of the engine, the 13 cars of sheep, and a caboose. At a station about 25 miles south of West Superior two cars of dead freight were put into the train, three cars from the engine. The train arrived at Spooner at 3 o’clock in the afternoon.
The plaintiff, Elliott, boarded this train at East Superior, a station a few miles southeast of West Superior, and rode free, under the contract with Sutphin & Co., in the caboose, from East Superior to Spooner. He was familiar with the railroad, the location of Spooner, and its railroad yards; knew that it was the custom of the company to change crews and cabooses at that station; had made at least three trips over this road before, and knew how the train was made up. When the train stopped at Spooner he alighted, and commenced, at the car next to the caboose, to examine and
In the movement and handling of the train at Spooner there was no negligence on the part of the defendant, unless it arose from the following facts, which were proved over the defendant’s objection: The plaintiff, while riding in the caboose between West Superior and Spooner, asked the conductor if he would change cabooses at Spooner, and the la iter replied that he would not, that there was no extra crew at Spooner, and that he would run through to Altoona. Shortly after the conductor asked him if he would want anything to eat at Spooner. He replied that he would like to get dinner, and look over the sheep, if he had time, and the conductor said: “Yon won’t have time for that. We won’t stay there over five minutes, — just long enough to change engines. The caboose and crew will go to Altoona.” The plaintiff knew that the conductor was running the train under orders from superior officers, and that his orders were liable to be changed at any time; but in ascending the car, walking back towards, and attempting to step upon, the caboose, he relied upon the assurance of the conductor that that car would not be changed, and when he climbed upon the slock car he supposed that the train was going out for Chicago. The admission of the evidence of these conversations, and of plaintiff’s reliance upon them, is the principal error assigned, and the ground of the error is that these were not the proximate cause of the injury.
The rale of law which governs this case is not difficult of statement, but, like many other rules, the difficulty is solely in its application. “Causa próxima non remota speetatur.” An injury that is the natural and probable consequence of an act of negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence
In Railway Co. v. Kellogg, 94 U. S. 469, 475, Mr. Justice Strong, speaking for the supreme court, said:
“Tt is admitted that the role is difficult of application. But it is generally held that in order to warrant a finding that the 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.”
In Hoag v. Railroad Co., 85 Pa. St. 293, 298, 299, the supreme court of Pennsylvania said:
“The true rule is that the injury must be the natural and probable consequence of the negligence, — such a consequence as, under the surrounding circumstances of the case, might and ought to have been fore-seen by the wrongdoer, as likely to flow from the act.”
The question in this case, then, is, was it the natural and probable consequence of the statement made by the conductor, that lie would not change cabooses, and would not stop more than five minutes, at Spooner, — was it reasonably to be anticipated from this statement that the plaintiff, after the train had stopped at that station ten minutes, would climb upon the top of the cars, and be in the act of stepping from the rear stock car to the caboose at the very instant that the latter was kicked off the train?
A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. Was there one chance in a hundred that this drover, in reliance on such a statement, would climb upon this. train, and so time his movements as to step off the rear stock car at the very instant the caboose parted from it? We think not. If he had alighted from the caboose, or climbed the car, or made any of his movements, after the train stopped at Spooner, 30 seconds earlier or later than
The natural consequence of an act is the consequence which ordinarily follows from it, — -the result which may reasonably be anticipated from it. 3’erhaps the conductor might reasonably have anticipated that this drover would leave his personal baggage in the caboose, possibly he might have anticipated that he would remain there himself in reliance upon the assurance that the caboose would not be changed at Spooner, and if he luid done either of these acts the defendant might be liable for any resulting injury; but who could anticipate that he would climb upon the tars, and put one foot on the rear stock car, and the other in the air, ready to descend upon the caboose, after the train had remained in the yard 10 minutes, and was backing up another track, and at the very instant when the caboose was being separated from it? Ho one, in our opinion, could have anticipated such an effect from so remote a cause. It was far from such a result as might oi* ought to have been foreseen, by the conductor as likely to flow from bis act, and it was error, in our opinion, to submit the evidence relating to these conversations to the consideration of the jury.
The authorities to which we are referred by counsel for defendant in error do not lead to a different conclusion. The three cases upon which he chiefly’ relies are Railroad Co. v. Winter, 143 U. S. 60, 12 Sup. Ct. Rep. 356; Pitcher v. Railroad Co., (Sup.) 16 N. Y. Supp. 62; and Olson v. Railway Co., 45 Minn. 536, 48 N. W. Rep. 445. In the first case the passenger, 'Winter, informed the ticket agent when he bought Ms ticket that he wished to stop over at the intermediate station of Olean, and was told to speak to the conductor. He informed the conductor, who punched his ticket, and was told by him that the punched ticket entitled him. to stop over, and to ride upon a later train. He stopped at Olean, took a later train for his destination, presented his punched ticket, and the conductor of the train refused to accept it, and ejected Mm. In the second case the conductor of a freight train informed Pitcher, a drover in charge of a car load of horses, that the caboose in which he was riding would go no further than the next station; that from that station he would have to ride in the car with his horses; that the train would stand 45 minutes at the place where it would be left on its arrival at that station; and that he could go to the hotel, and get his supper. He did so, and in about 30 minutes after the train had arrived he returned, and was in the act of climbing into the car where Ms horses were, when the train, which had been placed on another track, was started with a sudden jerk, without warning, and he was injured. In ihe third case the plaintiff, Olson, who was a drover in charge of a car load of horses, informed the conductor that one of his horses was loose
In each of these cases the plaintiffs followed courses of action that they would naturally be expected to pursue. They placed themselves in the positions they had fairly notified the conductors they intended to take, and the injuries were the natural and probable consequences of the acts of the employes of the railroad companies. If the plaintiff here had informed the conductor that he intended to walk from the rear stock car to the caboose, or to stand with one foot on each while the train remained at Spooner, and then had asked him if he intended to change cabooses, and if it would be safe for him to so walk or stand, the conductor might reasonably have anticipated the unfortunate result, but nothing less would have warned him of so improbable an event.
If authorities are wanted in support of our views, they are: Railroad Co. v. Reeves, 10 Wall. 176; Scheffer v. Railroad Co., 105 U. S. 249, 252; Jenks v. Inhabitants of Wilbraham, 11 Gray, 142; Durham v. Musselman, 2 Blackf. 96; Morrison v. Davis, 20 Pa. St. 171; Denny v. Railroad Co., 13 Gray, 481; Dubuque Wood & Coal Ass’n v. City and County of Dubuque, 30 Iowa, 176; Hoag v. Railroad Co., 85 Pa. St. 293, 298, 299; West Mahanoy Tp. v. Watson, 112 Pa. St. 574, 3 Atl. Rep. 866; Read v. Nichols, 118 N. Y. 224, 23 N. E. Rep. 468; Railway v. Mutch, (Ala.) 11 South. Rep. 894.
In Durham v. Musselman, supra, the defendant girdled a large tree, and then set a fire around it, and left it burning, so that the tree was liable to fall at any time. The plaintiff’s mare and colt wandered under the tree, and it fell upon and billed them, but the
In the same way, in the case at bar, the acts of the plaintiff in failing to return to the caboose at the end of the fire minutes he was told the train would remain at Spooner, in climbing upon the cars, and walking back on their tops to the rear of the last stock car, so that lie arrived there at the very instant when the caboose •was to be changed, were independent, intervening causes, that prevented the natural and probable consequences of the conductor’s assurances, and the movement oí the train, and brought about an unnatural and improbable result, that no human foresight con hi have anticipated, — an accident that resulted from a strange combination of fortuitous circumstances, few of which seem to have been more remote, or less likely to have produced the surprising consequence, than the conversations and acts of the conductor.
The view wé have taken of this assignment of error makes it unnecessary to consider others. The judgment below is reversed, with costs, and the cause remanded, with directions to grant a new trial.