197 Ky. 807 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming-.
Appellant Elizabeth Dunn was- injured when the automobile in which -she was riding collided with a railroad coal gon which the agents' and servants of the Central State Hospital for the Insane were pushing by means of an electric motor from the L. & N. railroad tracks at Lakeland across the public highway on to the grounds and property of the asylum, a -state institution. She sued by her mother, as-next friend, to recover- $10,000.00 damages,-mailing the Central State Hospital, alone, defendant. Later -and before answer she filed an amended petition making John Barton Payne, Director General of Railroads, including the Louisville & Nashville R. R. and the Louisville Interurban Railway Company, both,
The Central State Hospital is- a state institution and is not, as. we have Shield in numerous, cases, liable for the negligent acts of 'its; officers, agents ¡and servants which result in injury to the person of another. Ketterer’s Admr. v. State Board of Control, 131 Ky. 287; Leavelle v. Western Kentucky Asylum, 121 Ky. 213; Zoeller v. State Board of Agriculture, 163 Ky. 451; Williamson v, Ind. Schood of Reform, 95 Ky. 251; Emery, By, &c. v. Jewish Hospital Association, 193 Ky. 400.
As the Central State Hospital, admitted in the petition as ¡amended to be a state institution, exercises, part of the sovereign functions of the state government, it cannot be made liable in an action for tort, as the state can do no wrong, neither can its servants do wrong for it, or in its name so asi to make it liable in such oases. Elmore v. Fields, 153 Ala. 345; 127 A. S. R. 31. Clearly the appellant could not maintain an action for personal injury against the Central State Hospital, a state institution, for the injury occasioned to* her through the negligence of its employes., if any, in operating an electric motor truck in the regular line of their employment. She might, however, .have had and maintained an action against the employes of the asylum operating the electric motor if their negligence was the proximate cause of her injury.
The Director General of Railroads who at that time had charge of the Louisville & Nashville Railroad was made a party defendant and averred to be liable for the injury to appellant because he transported the gon of coal from the mines to Lakeland which later struck appellant’s automobile, and placed the ¡said gon on the railroad sidetracks at its station at Lakeland, where later the servants of the asylum came with their electric motor and pushed it from the said side tracks on to the private track owned and operated by the asylum, which said track extended across the highway upon which appellant was traveling at the time she was struck and injured. If
Appellant sought to hold the Louisville Interurban Eailroad Company responsible for her injury by averring that the said company, in addition to knowing that the agents and servants' of the hospital were incompetent to handle a railroad gon and that the agents and servants of the interurban company knew that the private tracksi of the hospital ran over ¡and across the public highway, and that injury was likely to result to members of the public upon the said highway from the operation by the servants of the asylum of said gon and electric motor over 'and across the same, that the said interurban company furnished electric current to the hospital as power to and with which it did operate and move its- said electric motor and move and push the said car of coal. The petition, however, contains no averment that the interurban company had any management or control over or of the crew, motor or tracks of the asylum. Nor does it aver that the current furnished by the interurban company to the asylum was improperly and negligently conducted by the interurban company on to the wires of the asylum, or that the current so furnished by the company to the ¡asylum directly or otherwise injured appellant, except that it was the power which was employed by the asylum to move the coal gon. It is lawful to sell and supply electric current to another and we know of no case in which it has been held that the seller of current was held liable for an injury resulting from the negligent act or acts of the servants of the purchaser of the current committed in the course of their employment. Many manufacturing plants, having no power plant, buy ■electric current of a utility company which produces the same for sale, but no court has ever held that the utility ■company is liable for the negligence of the employes in the manufacturing plant. The asylum was entirely independent of the interurban company in the management and
“A prior and-remote cause,” says 29 Cye., p. 496, ‘ * cannot be made the basis - of an action if such remote cause -did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated and efficient cause of the injury. If no danger existed in the condition except because of the independent cause such condition was not the proximate cause. ”
The same text on page 489', says: “In order to establish proximate- cause it is necessary in the first place that there be a causal connection between the negligent act and the injury. The act must have been such that, without it the injury would not have happened. It must have been the cause which produced the injury, the casv,a causans. And hence where the act did not contribute to the injury it cannot be the proximate cause. The mere fact that the negligence in point of time preceded the in-. jury does not of itself establish the causal connection,, and although the negligent act may have been the cause-of one injury it will not be considered the proximate cause of another injury resulting from the voluntary and independent action of the injured person, although, the negligent act causing the first injury caused or may have caused conditions which contributed .to the second injury, and but for whose existence the second injury might not have happened.” Louisville Gras Co. v. Kaufman, 105 Ky. 131; Cundiff v. City of Owensboro, 193 Ky. 168.
The proximate cause -of an injury is, according to the-experience of mankind, probably that cause which led to-the event which happened; and the remote cause i-s that, which would not, according to such experience, lead to-such an event. Therefore, proximate caus'e is- to be determined >by the average experience of mankind. This, can be found only by a jury under proper instructions. Beiser v. C. N. O. & T. P. Ry. Co., 152 Ky. 522.
What is the proximate cause of an injury is ordinarily a question for a jury; and once the facts’are agreed, or are -such that but one conclusion can be drawn by reasonable men, the question’is for the court, otherwise it is for the jury. Denker Transfer Co. v. Pugh, 162 Ky. 818.
Judgment affirmed.