Deisenrieter v. Kraus-Merkel Malting Co.

97 Wis. 279 | Wis. | 1897

Maeshall, J.

The proximate cause of the injury on the-evidence was a fact to be found by the jury. Questions-were included in the special verdict bearing on the subject,, and in respect thereto the court instructed the jury as follows: “The word ‘proximate’ is used there, and perhaps you ought to be informed as to the meaning of the word. It means the direct, the immediate, the near cause, or the nearest cause the direct cause of the accident. ... I understand the proximate cause to be the direct and efficient cause which produces the result.” Error is assigned on such instructions. That involves a subject that has been so fully, so often, and so recently discussed in this court that little if anything new can be said in respect thereto. The meaning of the word “proximate” was given, in effect, as a definition of the term “ proximate cause ” in the law of negligence, and later the jury were told directly that the proximate cause is the immediate, the near, or the nearest cause. That is manifestly wrong. Neither time nor distance is essentially a controlling element. Negligence is the proximate cause of an injury only when the injury is the natural, and probable result of it, and, in the light of attending circumstances, it ought to have been foreseen by a person of ordinary care. Those elements may exist and the producing cause be followed by lapse of time and several intervening-events, so long as they are all set in motion by the first cause and all form a continuous chain down to the injury. So the last event, or immediate, near, or nearest cause, it. will be easily seen, is not necessarily tbe proximate cause as we use the term in the law of negligence.

That is illustrated in the recent case of Donohue v. Warren, 95 Wis. 367. A person, accompanied by plaintiff, was ■driving with a span of horses and a carriage on the public road in the night time. Suddenly the right wheel dropped into a ditch and the driver was thrown out and lost control of the horses. The horses immediately became excited and ran a short distance, when the left wheel of the carriage ■dropped into a ditch and the plaintiff was thrown out and injured. The near, nearest, or immediate cause was the second ditch, but the proximate cause was the first ditch. The intervening events of the driver being thrown from the carriage, his losing control of the horses, their becoming frightened and running away, were all links which tied the final result back to the first acting cause. So, in Kingsley v. Bloomingdale (Mich.), 67 N. W. Rep. 333, plaintiff was ■driving his horse, on the public way, hitched to a buggy. He passed over a bridge not guarded by any rail; then stopped to converse with a neighbor. While so engaged the check rein became caught by a thill, which caused the horse to become unmanageable and to back onto the bridge and off from it at the unguarded side. The immediate cause of the accident was the absence of a proper guard rail; the producing cause was the misplaced check rein. Further illustrations are unnecessary to bring out plainly the misleading character of the learned judge’s language. It was of no importance whatever for the jury to be instructed as to the ordinary signification of the word “ proximate.” It was important for them to known the meaning of the term “ proximate cause ” as used in the special verdict.

That there are so many failures to properly submit the question here discussed to juries certainly does not grow out ■of any dearth of authority on the subject. It exists in abundance in this court and the highest courts of this country and of England, and the principles are well defined and laid down as indisputable, by elementary writers generally. As early as Kellogg v. C. & N. W. R. Co. 26 Wis. 223, this court said, in effect, that the proximate cause is not controlled by time or distance. In Atkinson v. Goodrich Transp. Co. 60 Wis. 141, the court said: ‘The proximate cause of an injury cannot be referred to negligence unless it appears that such injury was the natural and probable consequence of such negligence, and that it ought to have been foreseen in the light of attending circumstances.’ The court has said many times, substantially, that the test of actionable negligence is not whether the injury complained of was the immediate or the natural result of the conduct of another; that there must be the negligent act, an injury as a natural and probable.result, either immediate or át the end of a succession of events united by a close causal connection, together forming a complete chain reaching from the act complained of down to the injury, and producing it; the attending circumstances in either case being such that a person of ordinary intelligence and prudence might reasonably have expected the injury as a probable result of such negligent act. Davis v. C., M. & St. P. R. Co. 93 Wis. 470; Block v. Milwaukee St. R. Co. 89 Wis. 378; Barton v. Pepin Co. Agr. Soc. 83 Wis. 19; Huber v. La Crosse City R. Co. 92 Wis. 636; Craven v. Smith, 89 Wis. 119; Guinard v. Knapp-Stout & Co. Company, 90 Wis. 123; Klatt v. N. C. Foster Lumber Co. 92 Wis. 622; McGowan v. C. & N. W. R. Co. 91 Wis. 147; Klochinski v. Shores Lumber Co. 93 Wis. 417; Kreuziger v. C. & N. W. R. Co. 73 Wis. 158; Jewell v. C., St. P. & M. R. Co. 54 Wis. 610; Kerkhof v. Atlas Paper Co. 68 Wis. 674; Sheridan v. Bigelow, 93 Wis. 426; Donohue v. Warren, 95 Wis. 367; Andrews v. C., M. & St. P. R. Co. 96 Wis. 348. The elements of natural and probable result, and that the result ought to have been foreseen by a person of ordinary intelligence and prudence in the light of attending circumstances, are distinguishing characteristics between mere accident, of negligence from which no legal responsibility follows, and actionable negligence. If one be injured by the act of another and such elements are not present, it is referred to the natural imperfections to which the mass of mankind are customarily subject, and the risks incident to human existence and human activity, which, in the associations of life, all members of society are supposed to assume.

•It is said in the briefs of counsel for respondent that the difficulty of making any proper definition of “proximate cause ” is too well known for comment, citing Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, where the court said, “ The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury;” and Atkinson v. Goodrich Transp. Co., supra, where the court said, “ It is not a question of science or legal knowledge.” The meaning of the observations referred to, counsel obviously misapprehends. True, what constitutes the proximate cause in any given case is for the jury to find, the same as any other fact; it can be found by the court only when the evidence and inferences therefrom are all one way; and there is no scientific test or legal rule, strictly so called, by which the fact can be determined; but what constitutes the proximate cause in the law of negligence is always a question for the court, and it is governed by as well-settled legal principles as any other legal question. Hence, it is for the court always to require the jury to find the fact, either by answers to questions involving its essential elements, or by answering a question, under proper instructions, which calls for the ultimate fact, or by a general verdict under proper instructions. In short, it is for the court to say, as a matter of law, what constitutes “ proximate cause ” in the law of negligence, and for the jury to find whether the defendant is legally chargeable with having set it in motion in the particular case. No set words are essential or exclusive in. defining such cause. It may be defined as the efficient ■cause, that which acts first and produces the injury as a natural and probable result, under such circumstances that he who is responsible for such cause, as a person of ordinary intelligence and prudence, ought'reasonably to foresee that a personal injury to another may probably follow from such person’s conduct. It is not necessarily the immediate, near, or nearest cause, but the one that acts first, whether immediate to the injury or such injury be reached by setting other causes in motion, each in order being started naturally by the one that precedes it, and altogether constituting a complete chain or succession of events, so united to each other by a close causal connection as to form a natural whole, reaching from the first or producing cause to the final result.

But it is said that all the elements of the proximate cause were found by the special verdict, so that the faulty instructions referred to were not prejudicial. The findings relied on are to the effect that sulphur fumes escaped from the kiln, to where plaintiff was working, in dangerous quantities; that defendant might reasonably have anticipated1 such danger, and in the exercise of ordinary care should have known and have informed plaintiff of it. The difficulty is that such findings must be construed in connection with others to the effect that sulphur fumes never theretofore escaped to the place where plaintiff was working, in dangerous quantities; that Pitón, who had charge of the kiln and set plaintiff to work, and who operated the kiln, did so in the customary manner, and that he was free from negligence. The two series of findings, seemingly, are in direct conflict. If the person who had personal knowledge of all the attending circumstances of plaintiff’s injury, and who actually operated the kiln, was free from negligence, and the sulphur fumes had never before escaped in dangerous quantities to the place where plaintiff was working, and the work was being done in the customary way, it would seem to follow, necessarily, that defendant cannot be chargeable with negligence ■in that it did not foresee the danger and warn plaintiff of it. In view of the conflicting character of these findings, we are unable to say that the elements constituting proximate cause are satisfactorily found by the verdict.

But no less serious question arises on the following findings of the special verdict: The friction gearing was so located as to be dangerous to employees when engaged in their ordinary duties; such gearing, without interfering with the operation thereof, might have been guarded so as to have prevented plaintiff from being injured; he had not sufficient intelligence and experience to comprehend the danger in operating the machinery; such danger was so obvious and plain that a person of ordinary intelligence might have known and comprehended it; plaintiff was not guilty of any contributory negligence; the proximate cause of his injury was the fumes of burning sulphur and salt and the unprotected friction gearing. Plaintiff was a man of mature years, and, even though the fact be that he was not possessed of ordinary intelligence and capacity, there is no finding that defendant had knowledge of such fact, nor is there any evidence upon which defendant can be charged with such knowledge. Hence, for the purposes of this case, plaintiff was bound to know of and comprehend all the dangers which were open and obvious to a person of ordinary understanding and experience. Klochinski v. Shores Lumber Co. 93 Wis. 417; Batterson v. C. & G. T. R. Co. 53 Mich. 127. A failure in that regard on his part constituted a want of ordinary care, and if it contributed to the injury he received it is fatal to a recovery against the defendant. That it did so contribute is expressly found by the jury by the finding that the dangerous machinery was part of the proximate eause of the injury. That finding is in direct conflict with the finding that the plaintiff was not guilty of contributory negligence. If there were no other error, this is so manifest as to necessarily work a reversal of the judgment.

There are numerous other errors assigned, but, if prejudicial, they are such as are not liable to occur on another trial,, hence it is not considered necessary or advisable to discuss, them in this opinion.

By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.