Civil No. 1192 | Ariz. | Nov 16, 1912
Appellee contends that the act of Cuber was an intervening efficient cause of the damage, and that the injury proximately resulted therefrom. The trial court also adopted this view, and so applied the rule to the admitted facts. The appellant contends that the act of Cuber in cutting the limb of the tree, causing the power wires to become severed and fall upon the telephone wires and transfer the deadly electric current thereto, was at most a concurrent negligent act with the negligence of appellee allowing its wire to remain in close proximity to the highly charged power wires without insulation or other proper guards and in maintaining the telephone instrument in the boiler-rooms without proper protection, with fuse plugs or other devices. It is admitted by the appellee for the purposes of its motion and this appeal that it was negligent in maintaining its telephone wires and instrument as alleged. With the facts and negligence admitted we are only concerned with the question of the proximate cause of the injury. The definition of proximate cause most often given is that found in Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U.S. 469" court="SCOTUS" date_filed="1877-04-30" href="https://app.midpage.ai/document/milwaukee--saint-paul-railway-co-v-kellogg-89495?utm_source=webapp" opinion_id="89495">94 U. S. 469, 24 L. Ed. 256, as follows: “The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation ? Did
The negligence of the defendant is admitted, and in the light of this admission it was an original wrongdoer in permitting its wires to remain unprotected from the highly charged overhanging wires of the canal company, and in permitting the telephone instrument to remain without fuse plugs or other safety devices. Unless the act of Cuber was an intervening efficient cause of the injury, the injury to appellant’s intestate is a consequence naturally and proximately following from the original admitted negligence of defendant. By “efficient cause” is meant the working cause, or that cause which pro
It is evident that the act of Cuber would not have caused the deadly electric current to have reached the body of the deceased but for the manner in which the telephone wires and instruments were maintained by the appellee. Had due care been exercised by the appellee in protecting its telephone wires where they approach the power wires, the breaking of the power wires would not have overcharged the telephone wires. Had the telephone wires remained unprotected and the telephone instrument in the boiler-room been properly protected by fuse plugs and safety devices, and under such circumstances, Cuber caused the power wires to fall and come into contact with the telephone wires and overcharge the telephone wires no injury would have resulted to deceased. It is clear that the combined act of the defendant and Cuber produced the condition that resulted in the injury and damage. If the act of Cuber was negligent, the damage resulted from the concurrent negligence of defendant and Cuber, and the act of each may be counted on as the wrongful cause of the injury and the parties held responsible either jointly or severally for the injury. 1 Cooley on Torts, 3d ed., 121, and cases cited in note 16; Colorado Mort. & Invest. Co. v. Rees, 21 Colo. 435" court="Colo." date_filed="1895-09-15" href="https://app.midpage.ai/document/colorado-mortgage--investment-co-v-rees-6562662?utm_source=webapp" opinion_id="6562662">21 Colo. 435, 42 Pac. 42; 29 Cyc. 498-502. If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury must be referred to the wrongful cause passing by those which are innocent. 1 Cooley on Torts, 3d ed., 101, 102, and notes.
It is not charged that the act of Cuber was more culpable than careless in cutting the limb from the fig tree. If his act was negligent and his negligent act combined with the negligence of the defendant caused the injury, the defendant cannot shield himself from responsibility by pleading the wrongful act of Cuber. 29 Cyc. 497, 498. If Cuber’s act was legal, and in its performance he used reasonable care, it was innocent, and the law would pass it over, and the negligent or wrongful act of defendant must be considered the proximate cause of the resulting injury. Scott v. Sheppard, 3 Wils. 403, S. C., 2 "W. Black. 892 (Squib case). It is not claimed by the defendant that Cuber cut the limb of the tree with a
It is the province of the jury ordinarily to find from the evidence what was the proximate cause of the injury, but, on demurrer, it is the duty of the court to decide that question. The manner in which the question was raised in this ease permits the court as a matter of law from the pleadings and the admitted facts to decide the proximate cause of the injury to appellant’s intestate as upon a demurrer, and, having determined that the act of Cuber was that cause, erred as a matter of law in there fixing the liability for the damage.
The other errors complained of, if errors, are such that they need not be considered in view of the fact that a new trial becomes necessary.
The case is remanded to the superior court of Maricopa county, state of Arizona, with instructions to vacate the judgment, deny the motion, reinstate the cause, and proceed therewith in accordance with law.
FRANKLIN, C. J., and ROSS, J., concur.
Application for rehearing denied.
NOTE.—As to the legal theory of causal couueetion within the doctrine of proximate cause, see note in 36 Am. St. Rep. 807.
As to proximate cause, and intervening conditions, see note in 1 Ann. Cas. 230.
As to the respective functions of court and jury with respect to questions of probable cause, see note in Ann. Cas. 1913B, 351,