212 S.W. 477 | Tex. | 1920
Lead Opinion
This suit was filed in the District Court of Parmer County by Robert Collins, to recover damages from the Pecos Northern Texas Railway Company, for injuries alleged to have been caused by negligent poisoning while he was acting for the defendant as section foreman in unloading railroad ties recently treated with a mixture known as "creosote." The negligence is charged to have been the failure of defendant to warn him of the danger of poisoning resulting from contact with the solution. *580
The findings of the jury, and there is evidence to support same, sustain the allegations that about the 27th of May, 1912, plaintiff was working on the line of defendant's road, in charge of a section gang, unloading and placing ties which had recently been treated with a creosote solution for preservation; that these ties were wet with the solution, and that it got on the hands and face of plaintiff, causing injury; that he had theretofore handled creosote ties and timbers on which the solution had dried, but had no experience in handling wet timbers and did not know that creosote when wet would produce injury to his hands and face by coming in contact therewith; that he did not know the properties of the solution, or that it was poisonous; that defendant did know, or by reasonable diligence could have known, that the solution used by it, when coming in contact with the skin before it had dried, would cause injury thereto, and would poison the flesh; that the defendant did not warn plaintiff of the dangers of poisoning or injury which were incident to handling wet creosote solution with his hands, and permitting it to come in contact with his face and hands; that plaintiff was permanently injured as a proximate result of the poisoned condition produced by the solution, and that this injury was the proximate result of the negligence of the defendant.
The Honorable Court of Civil Appeals finds that the facts are sufficient to support the conclusion of the jury, except, as it says: "Assuming that creosote is a poison and so recognized by the chemists or the medical world, but as noted by them, all known effects of such poison when applied to the skin is a burning sensation compared to a sunburn, and never known to the profession or treated by standard authorities as producing constitutional disorders, or systemic poisoning, whether an employer would be charged with negligence in failing to warn of such danger when it did not know and could not know that a constitutional disorder would result from such a use; in other words, was such an injury incidental to the wrong done and was it such as may have reasonably been supposed to have entered into the contemplation of the appellant. . . . The fact that appellee's condition is a serious one, it will not necessarily follow that the hands burned by creosote produced it, though the opinion of the two doctors may have warranted the jury in finding as a fact it did. The evidence is lacking to show that such injury could, or would reasonably have been anticipated and that appellant did know or should have known thereof, and therefore in order to prevent it have warned appellee of such danger."
For a more extended statement of the pleadings, evidence, and discussion of the Court of Civil Appeals, see
As we interpret the opinion of the Court of Civil Appeals, it holds that there is no evidence supporting the contention that the negligence of the defendant, as found by the jury, was the proximate cause of the permanent injuries. We further understand the holding to be that, though the permanent injuries may be the natural consequence of the negligence, responsibility therefore can not be chargeable against the defendant, without showing anticipation of such permanent injuries to exist at the time of the negligence.
We are thus brought face to face with the question of whether or not, when permanent injuries result from negligence, the wrongdoer is chargeable with all the consequences that naturally and proximately flow from such negligence. Also with the question as to whether or not there is any evidence to support the finding of the jury that the permanent injuries to plaintiff were the natural and proximate result of defendant's negligence.
We believe that the correct rule for determining negligence is, that, where there is reason to anticipate, from the character of the services required, and the manner of their performance, some injury may result to the servant, the duty is incumbent to exercise such care demanded by the relationship as will prevent the injury, and the failure so to do becomes actionable in the event injury follows the breach of duty. We are not willing to subscribe to the rule that requires the master to anticipate all ensuing results which flow from the breach, before duty arises to exercise care to prevent the consequences. Anticipation is applied in the determination of negligence vel non. If no injury may be anticipated, no duty is breached by a failure to exercise care; but, if anticipated injury may result, then the duty arises. Negligence rests primarily upon two elements; first, reason to anticipate injury; and, second, failure to perform the duty arising on account of that anticipation. Negligence may exist abstractly; but to render it actionable, it must be concretely incorporated into some injury.
In the Kieff case [Galveston, H. S.A. Ry. Co. v. Kieff],
In Heiting v. Chicago, R.I. P. Ry. Co.,
Anticipation of injury as applied in the determination of negligence and proximate cause should not be confused. The former is an element of negligence, while the latter is used to denote the relative position of cause to effect in ascertaining whether cause is so related to effect as to bring negligence in union with the result rendering liable a negligent actor for certain consequences. Whether a result can be chargeable to a certain dominant cause, is determined by ascertaining whether the result flows naturally, without lapse, from the cause; although there may be intervening ancillary or subsidiary causes which contribute to the injury. Proximate cause incorporates in it such anticipation of results as ought, from the circumstances, to have been foreseen as the natural consequences flowing from a negligent act.
In Houston T.C. Ry. Co. v. Leslie,
Judge Brown, in Galveston, H. S.A. Ry. Co. v. Powers,
In Gulf, C. S.F. Ry. Co. v. Smith,
Where some injury has resulted, chargeable to negligence, later followed by serious consequences, to ascertain whether these consequences proximately flow from the negligence, it is always necessary to look back down the line for causation; and if the consequences naturally flow from the negligence, without the intervention of any independent cause, such consequences ought to have been foreseen, and are chargeable to the original negligent act. Or, on the other *583
hand, if the negligent act produces an injury, and looking down the line to the future it can be ascertained that other and more serious injuries will naturally flow from the negligence, without any intervening independent cause, these consequences are probable, and ought to be foreseen, and are chargeable to the negligence. We cite further on this question, the Bellar case [Texas N.O. Ry. Co. v. Bellar] 51 Texas Civ. App. 154[
The defendant in error relies upon the Bigham case [Texas P. Ry. Co. v. Bigham]
It is believed that when properly understood, the Bigham case is in consonance with the position which we take. In that case it is held, as we interpret it, that the Railway Company was not liable for the injuries to Bigham, because, in the negligent act, anticipation of injury to a person did not exist. The Court in that case held that Bigham's injury was chargeable to an independent cause, which independent cause was not in anticipation of defendant. As we understand the application of the rule there announced, it is, that where an independent cause follows a negligent act, in order to connect the subsequent result with the original cause, such independent cause producing the result should have been anticipated by the original wrongdoer. We do not understand that case as militating against the doctrine that where anticipation of injury arises, or is chargeable to an actor, he will be responsible for all of the consequences which naturally and proximately flow from that wrong. The Court in that case, in our opinion, uses anticipation or foresee, not as applying to the injury sustained by Bigham as such, but as applicable to the intervening independent cause producing that injury, that is: since the cause producing the injury is an independent one, the result of that cause is independent of the original negligence, and does not arise proximately from it. The same may be said with reference to the holding in the Welch case. The view here given with reference to the Bigham case is believed to be sustained by reference to the Kellogg case [Milwaukee St. P. Ry. Co. v. Kellogg]
Whether or not the permanent injuries suffered by plaintiff were the natural and proximate result of defendant's original negligence, was a question of fact to be determined by the jury. The Powers case, supra; City of Galveston v. Posnainsky,
In the instant case, defendant's negligence caused anticipated injury. The testimony is conflicting as to whether the permanent injuries flowed from that negligence naturally and were the proximate consequences of same. There is evidence in the record requiring the submission of this question to the jury, and upon which it was authorized to find that issue for the plaintiff.
In view of the disposition to be recommended in this case, we have considered the other assignments of error presented by appellant, and find therein no error calling for a reversal of the judgment of the lower court. The paragraph of the Court's main charge to which exception is leveled is cured by the special charges given at the request of the defendant.
We are, therefore, of the opinion that the judgment of the Court of Civil Appeals should be reversed, and the judgment of the trial court affirmed.
Addendum
The Railway Company's motion for rehearing is overruled. Whether the injuries of the plaintiff were proximately caused by the Railway Company's negligence, was a question of fact and for the jury's decision. The holding of the Commission of Appeals on the question, as reflected in its opinion, is in our view correct.
The Railway Company presented a number of assignments in the Court of Civil Appeals, but that court disposed of the appeal *585 on only one of them. Its decision made consideration of the other assignments unnecessary. A number of those assignments present questions of which the jurisdiction of the Court of Civil Appeals is final. The Railway Company is entitled to have those assignments determined. Instead, therefore, of affirming the judgment of the District Court, as was done on the original report of the Commission of Appeals, the cause will be remanded to the Court of Civil Appeals for the determination of those assignments.
Reversed and remanded to Court of Civil Appeals.