*1 City Saginaw: of ELBERT OF CITY SAGINAW.
Negligence tions- —Barricades—Infants—Parental New trial -duty ricading days, in front of his permanent tion into such child’s case of the contributory Edwards, Kavanagh, in his action tion old, 4' x —Instructions for failure to determine and parental excavation 4' x 16' defendants, brain granted otherwise, against care home, partially damage for their to child of, — owed to children of and that had been water-filled for several city and water main Municipal Corporations per barricaded received when he fell Souris, obligation protection, Black, years charge jury properly JJ., subject J. excavation, Eault. to, and there and for studied child, per being months of parental сontractor age, into — no derelic- city Excava- 28-day- Smith, street injec- fault, toas bar- age for Dethmers, J., Kelly, JJ., dissenting. Carr C. and Appeal Saginaw; (Eugene Snow), Huff J. (Docket 4, Submitted October 1960. 11, No. Calen- 48,100). Rehearing dar No. Decided June 29, 1961. September 21, denied 1961. guardian Elbert,
Case Noland W. of the estate against City Noland Elbert, James minor, Saginaw, municipal corporation, Eugene J. Stephen copartners doing Fattore and J. Fattore, Company, damages as Fattore business for sustained when minor fell into a street excavation. Verdict judgment appeals. for defendants. Plaintiff Re- granted. versed and new trial plaintiff.
van Benschoten & van Benschoten, References for Points in Headnotes Jur, 39 Am New Trial 119. §§ Michigan Reports. Nash, A. City Attorney W. Vincent {William Boosr Jr., for defendant counsel), Taylor {Stanton, McQraw,
Stanton & MacKensie & *2 for on for defendant application rehearing), Fattore Company. ward,, {dissenting). C. J. Plaintiff’s
Dethmers, 2 son, while and 8 months of years his fell age, into a street 4 water-filled excavation feet deep, feet wide, and feet in- long, sustaining personal juries. Defendant Fattore had made and Company the excavation a maintained under contract with de- lay fendant city water mains. for damages Suit is injuries. from the The resulting jury returned verdict of cause action. From an order deny- plaintiff’s motion for trial ing appeals. new he excavation was near an in The intersection street and feet the nearest in the side- point walk. It was across the street and a couple houses removed from residence. It was aby surrounded of wooden long, sawhorse-type bar- rier side; on the opposite side, street between it and the sidewalk, by pile dirt, higher than barrier, wooden which had been removed from excavation, and at each end boards laid across from the of the wooden barrier of the top top in pile. dirt residential well-developed area. Children in to a passed going nearby school.
The child his mother had been their back where she yard clothes. engaged hanging up After a few the child went into the- there, minutes house the back door. through The mother went into him and, house to look for him locating him, testimony, found to her 5 to there, according after he minutes had left her, floating, down, head ok No one testified as to how from in the excavation. what place he had fallen into it. error that in-
Plaintiff claims as defense counsel jected permitted into the the court trial, and to be contributory negligence issue, considered as parents of the a defense child’s to his action. The upon (1) relied for this contention incidents are: Company’s Inclusion in defendant Pattore answer of paragraph says, so which, amounted to raising parents. contributory negligence the defense of of the upon plaintiff’s motion,
This, was ordered (2) stricken from the answer before trial. pretrial
statement of defense counsel conference company proxi- defendant claimed mate cause of accident was the parents permitting young so a child to out on upon plaintiff’s the street alone unattended, and, objection, the court’s failure to comment thereon. (3) company’s The defendant motion to consolidate *3 the child’s case with that of the father his medical out-of-pocket expenses and and the court’s refusal grounds contributory negligence on the that the of parents, while a defensе could not latter, (4) be so the former case. motion, Plaintiff’s before that trial, the court instruct defendants not inject parents’ negligence to the issue of the into saying trial, and the court’s refusal to do, so the court already contributory that had ruled the matter of negligence out of and the case that it could not and propriety would not rule on the of trial counsel’s they (5) tactics until occurred. Defense counsel’s questions plaintiff’s to witness as to whether the permitted previously play mother had the child to upon plaintiff’s objection, outside to alone, which, the court held the answers inadmissible, would be declining, instruct about however, to defense counsel during saying future matter references this trial, questions they (6) that would rule on as arose. plaintiff’s objection overruling The court’s had told the witness the mother whether question fell in. (7) the child Defense where was when she that statement, they in his opening counsel’s saying, to assume that right that had they maintained tender would take years of of such children parents de- (8) giving is obvious. The court’s such care as that claimed they they request charge fendants’ young that children too had a assume right allowed their be protect themselves or supervision without care the street parents claimed that could not they defendants would have parents permitted foreseen that this. trial of before are occurring these incidents
Any as insofar claimed significance plaintiff’s without. trial is concerned. right new & Grand Trunk Keyser Chicago Plaintiff v. cites Co., R. (56 405), Am holding Mich Rep legally that a child of cannot age guilty with beginning and cases negligence, contributory Sable, Au Village 85 Mich Shippy Inc., I. Benjamin Magid, Conners ending to the effect that the con (67 1001), Mich 628 ALR2d defense to parents tributory negligence their child. In the instant case court the action of were not con charged expressly question contributory negligence sider child or these would parents either because to this action. be no defense of error this connection To claims is that trial court of defendants answer the con- a defense raising were defendants instead, parents, but, tributory *4 that defendants were to establish undertaking were cause proximate which was guilty doc- invoke related and to injury of the child’s that contend their foreseeability. They trine of right claim to their assume that such child permitted goes alone on the street dangers they obliged the matter of what foresee when were they safeguard public undertook to by placing around excavation, barriers that they negligent they whether were what did or respect depended they in that failed do on whether adequately protected against dangers had they
might reasonably pre- that forеseen, this question jury, entitling sented of fact for the thus theory defendants to submit their toas they what have foreseen, should this de- pended right on what had had to assume. Mayne, quoted
In Nash v.
In Roberts Mich 726, 730, Court quoted approval v. St. Clair Clumfoot (syllabus), Tunnel Co., 221Mich 113 as follows: “ personal injuries alleged ‘In an action for to be negligence, result of defendant’s in order that the plaintiff may appear injury recover must that his probable consequence negli- the natural of a gent act or omission of the defendant which under ordinarily prudent person circumstances ought reasonably anticipated have foreseen possibly might occur as a omis- result such act or ” sion.’ question held that this Court Clumfoot what should foreseen been have been would have *5 ordinarily prudent person one of fact for an jury. jury it for the to decide In the instant case was negligence guilty were which defendants whether preliminary proximate thereto, cause as and, they possibility of have foreseen the whether should greater barricading injury resulting an placed around the excavation. follows than that, jury touching it for thе latter, was deter- assumptions might in make defendants mine what attempting possible future occurrences foresee proper pre- for that was defendants and, hence, sent their still jury bearing proofs arguments on to the they might theory to what assume. It was jury thereof, for the decide correctness in so this case. left and was charging court claims the erred Plaintiff stating jury accident.” on “unavoidable parties jury the court said claims of the how claims. Nowhere, was one of defense actually this subject charge on that the court ever, did requested. error occurred had No as defendants properly Furthermore, the court connection. this proximаte negligence on the issues instructed sugges party neither offered corrective (cid:127)cause and any Consequently, error at if there been tions. had it would have been harmless. connection, all Lober v.
Sklar, 357Mich 166. jury “that mere fact The court instructed the occurring happening is not evi- accident, an (cid:127)of physical negligence.” facts Here dence to act were before acts failures the defendants’ determining affording ample jury, basis speculations question. negligence Resort to of an accident would fact of the occurrence the mere nothing determina- for a basis have added tion embracing jurisdiction in a even chargе ipsa loquitor inwas doctrine. the res oe v. previously approved by terms this Court. Fuller v. Wurzburg Dry Co., 447; Goods Mich Brebner System, Sidney Hill Health Inc., Mich 541; Daigneau Young, 349Mich 632.
An that neither instruction defendant was an in- safety public required surer but was *6 only ordinary to use reasonable or care, cannot rea- sonably conveyed be said to have the idea to the jury liability coverage. that neither had insurance It prejudicial plaintiff. was correct and not charged jury The court the that: city “The is to erect barriers that will guard, notify traveling public, warn, both pedestrians, of motor drivers vehicles that there anis excavation to be avoided.” general import think the We of this sentence is by plaintiff, not, as contended the words “guard”, “notify” disjunc- “warn”, are in used cumulatively synonymously. tive, but, rather, fully charged The court by that, as statute provided, duty upon city keep defendant was to the street reasonably “in condition safe and fit for (Stat § travel.” 9.591). § CL 242.1 Ann That properly presented question by to be decided jury. think We no error occurred connec- tion. impressed against
We are not that the verdict overwhelming weight of the evidence. Judgment should be affirmed. Costs to defendants. Carr JJ., Kelly, concurred with Dethmees, C. J. J. The essential fact before is us an ex- Smith, by public cavation made highway defendants in a in a residential It area. was located within a half block of a (its school attended small children classes extended kindergarten through the well as grade), by handicapped sixth children. was excavation feet approximately wide, deep, length. feet and 16 feet excavation defendants allowed to remain This for some 28 became filled with days. water open condition allowed to its brim. was to so per- This days prior accident, despite sist several fact have been out in a pumped could matter of minutes with a suitable pump. It was invitation disaster but to “I open only play. remember,” testified mother who lived directly opposite excavation, street “it [the across had been there before beсause we had days water] children seen stones water and throwing I husband and would tell them that that my doing.”
what should be The hole guarded by mound dirt on one side and by single planks, resting part sawhorses, on each of the other 3 sides. obviously, fraught
The situation was, *7 hazard for children another neighbor lady, who had observed the hole with water for the filled first night accident, time before only stationed herself there the next “and morning watched children to school.” addition going she called a hall, and city registered complaint, explained it a school, the situation —“that was near and there a lot of small children around that neighborhood was I it taken and wanted immediately, being care taxpayer.” рlanned She resume her time vigil for the noon about a after recess, quarter 11, since then again the children would hole. passing the left her 11:15 Consequently, she house around and there was about half when she heard mother way A little for boy Elbert, whom screaming. (Jimmy action here and who will brought be referred ok purposes clarity, for plaintiff)1 hereinafter, as the floating gone was water. His mother had out yard hang up washing. to the back “Jimmy “In a minutes,” [then few she testified, years age] away scooted I and heard the 2-1/2 back door of our house slam and I knew he had the going habit of I in. knew he was there but when he right immediately didn’t come back I in to went find him but he didn’t I answer so and hurried outside ran * * # neighbor’s around to the for [calling house receiving answer] but immediately
him, so I neighbor’s ran to the standing dog- other house and saw their there all wet. [*] [*] [*] The next thought was seeing to look at those dog excavations, after wet, that entered over to these open my excavations. mind immediately, [*] # * and I went Jimmy “I found head down in the water and I screamed.” respiration applied,
Artificial with the use of (cid:127)oxygen, for 45 The child minutes. revived, but had pediatrician damage. suffered brain A testified that under the described conditions destruction of brain begin will (cid:127)cells within 2 to 3 will minutes, become serious 5 minutes fatal at and 7. These brain cells, regenerate any damage do not testified, permanеnt done is irretrievable. doctor’s diagnosis final condition was spastic hemiparalysis personality change. brought having jury, acting- Action been therefor under instructions hereinafter to be discussed part, returned verdict defendants. study conveys
A of the record before us an air of unreality proceedings. about the entire At times though parties trying seems as were another case, of James *8 Actually Boland the Elbert, a minor.” is “Boland W. Elbert, guardian of the estate have the other
involving people. persistently- We entire questions, the recurring throughout record, and the care the supervision exercised respecting by lack negligence (or the parent’s it) But рarents. an here. find references We issue the away wander “letting home,” their child parents their wander or child around “allowing or “allow their minor children of this streets,” [ing] nothing Yet is clearer play age [outside].” infant from his escaped record than she out while was supervision hanging mother’s hint in the back and there washing yard him to wander into permitting allowing the case back for new go highway. Since us, we will facts before that, upon state trial, parental no dereliction care of, there was And, us. we to, finally, infant before obligation following: find the abide
“Mr. Stanton: I of course would by I here that prove but propose ruling court’s parents boy type this case knew to dо almost likely anything. of a that was boy him called ‘fearless fact, a matter of “As into he was trouble always getting Jimmy’ because I intend I what prove that, if can’t that’s might I as well witnesses, some these to prove quit.” back reality well to case bring analysis. The plaintiff its upon legal we enter
before an nor adult, reasoning was not even before us time, infant, at this actually, He child. own knowl- months. of 2 and 8 Our the age years are meager. of this age of the characteristics edge been, they may whatever experiences, But monu- of time. fog are buried back (resell lack and Ilg2 does mental work Gesell Ilg, Child Development, pp 177-201. *9 oe age “always getting indeed, child of is, A this dеtail. fully yet into has not trouble.” He mastered bladder subject contrary He control. is to bowel im- Though pulses. exuberant, he has not learned the consequences of his to hence, actions an adult, paradoxically. acts There is much what we call fantasy toys. He his existence. talks to his His a or a becomes, times, crib bus railroad train. He perception space has no accurate or size and thus may fear he will be sucked down the drain with To bath characterize his water. such an infant to the (arid Jimmy” court as “fearless we is use these after mature deliberation, words since for us utterly precedent) aset If ridiculous. this is at- approached, titude with which case was this if this atmosphere was the in which it was it tried, must again, being be tried for another case was particular plaintiff may heard. “Fearless” this been in playthings, his crib as he talked to his but applies any legal fearlessness issue ease involves choice of conscious alternatives and consequences. an of resultant awareness This particular plaintiff (and only being his is the case tried) completely incapable making such a pertinent, point choice. It is also, to observe at this charge jury, that to city done, as was here that a discharges duty by erecting an its infant guard, notify “barriers that will warn, travel- ing public” inadequate and erroneous. In the first place, guard, guard, not in the alternative, notify, conjunctive, warn, but notify. warn, and as that term Notification, is ordi- narily employed, adequate respect handicapped, sight those deficient in or understand- ing, deserving but who are, nevertheless, of care, particularly highway open of a use to all. charge Moreover, must be related the facts. trying public. “traveling” areWe the case of the read or to reason or unable to infant haveWe signs for an adult. sufficient to understand were reasonable erected or not the barriers Whether for for protection infant will be matter of such an proper instruc- under determination, greater being hazаrd that the axiomatic tions, required. greater is reason to If there the care presence children in this area of small foresee *10 detail), (a point in some we will hereinafter discuss respect guarding duty guard to to includes children. such by appellant principal relates claimed error The legal duty asserted breach involved, brought. assert, action is The defendants of which lengthy argument proximate reply, a as to cause. in It analysis lump together, only legal as obscures concepts. duty of a re- A because arises 1, these parties. lationship it be found Should between the obligation to a to conform to certain an actor exist, hаs cause, of Proximate conduct. standard fact, there is cause involves hand, once other problem problem, draw of where to cut-off oversimplify, liability. To somewhat the line as consequences. obligation, looks at the other the one terminology, possible, a matter of It of course, as duty, phrase any question relating breach, question, consequences any indeed, re- thereof, “proximate lating negligence, cause.” in terms of process of do we obscure whole But when we so judge scramble the functions of we decision, policy jury, the critical of and we conceal issues shaping judgment. a we lower short, involved going what? сurtain” over what is on. So “word verbiage just ? a of harm done matter What Is This case furnishes vivid answer. not reason- assert that could
The defendants person ably of that a class foresee injured by them: “We be the condition created oe say that in case expect defendant this could reason- 2-1/2-year-old ably foresee or that a child intelligence age, the lowed to wander around the child al- would be fall in
streets and public which which hole had barricades warned the of its existence.” talking duty.
What defendant is about here is concept foreign early was as law, concept indeed itself. As private gradually beyond primary law evolved its original prevention private function, the warfare,3 negligence concept slowly took definite form and shape. way might One clear in which a defendant negligent performance recog- to fail in the of a legal duty, public nized one assumed in calling, officeor or from a or control bailment, of a dangerous article.4 The established writs were ade- quate procedural requirements to answer the in such cases and where there was the writ there was the right. only struggle, modern times that we unsuccessfully, in some still cases to reverse the process. quite naturally, archaic The courts then, Harper put negli- it, James came “to look on *11 gence duty plаin- as the correlative of not to harm complaining.”5 tiff in the manner of which he was may Whatever have been the historical anteced- concept, firmly of the ents is now established as a part negligence. of the law of “This Court,” we have “is held, committed to the doctrine that where there legal duty no negli- is there can actionable gence.”6 unique The commitment is not to us. It is the qua requirement (a
sine non of law, “duty”) people society in an ordered con- must
5 Harper [6] [3] 4 Winfield, Duty Butrick v. See Stewart v. and Snyder, James, Torts, Rudner, in Tortious 236 Mich 349 Mich § Negligence, 18.1, 300, 459, 306. pat 466. Í016. 34 Columbia L Rev 41. of in their conduct rela a certain standard
form to way, in another with another. Phrased one tions duty simрly problem problem of the of is undisciplined degree and which one’suncontrolled recogni in the courts will be curtailed activities organized society. This deter needs of tion of the vicinage of the are not trained those mination make, may composite judgment their however faultless lying neighbors is to which of their and be as telling we have involves, the truth. which is legal history, precedent, of alloca much of seen, *7 puts succinctly. Prosser of risk loss.* tions In responsibilities apportionment discussing among jury judge he duties states between question any of in such “the determination of the court is, whether the defendant stands —that impose will law relation obligation any upon him of rеasonable conduct plaintiff. law, is This issue one the and is never benefit say, jury.”8 This not to for the is may involved never be course, that fact issues “varying application inferences rule. In event possible,” there words, in Mr. Cardozo’s are Justice may jury.”9 question questions for the “a Thus in which hazard or not an area arise to whether normally an area within which humans created depend duty imposed will area move. The respecting upon use, the enun its found but the facts duty upon is for facts found ciation of jury. court, just point com- at this that serious error
It is
following
court,
defendant’s
The
mitted below.
charged
theory,
as follows:
(pts. 1, 2),
Duty
Negligence
Green,
Cases
Problem
See
Green,
255, reprinted L
1014,
Columbia Rev
L Rev
28 Columbia
Jury,
Judge
eh
3.
(2d
50,
ed),
p 281.
Prosser, Torts
at
§
9Palsgraf, post,
p
248 NY
345.
*12
City
477
ok
v.
you
if
find in
“Therefore,
this case
defend-
Company
reasonably
ant Pattore
could not
foresee
young
guilty
contributory
to be
child too
of
negligence would be in the
care or
streets without
supervision,
Company
the defendant Pattore
responsible
your
not be
verdict must be no cause
Company.”
of action as to the defendant Pattore
charging
respect
The court here is
with
to defend
duty
of
ants’
to children
class. Essen
question
tially the
is whether the
of this
interests
protection
plaintiff
against
are
entitled
class
way
defendants’ conduct. Stated in another
question
any
is whether these defendants are under
obligation
respect
to infants in this area.10 Are
neighborhood
the infant
of the
children
within the
respect
danger” with
“zone of
to the hazard created
by
problem,
defendant? This
just
as we have
for
owner’s
or
is for the
stated,
court,
as would be,
question
instance,
whether there is a land
duty
of care
an infant
towards
trespasser,*
whether there
owed
a manufacturer
to the ultimate
of his product.12
consumers
Palsgraf
problem
Case, also,
involved the
duty, though
simpler
opposite
form and at the
(then
judge
extreme. Mr. Justice Cardozo
chief
appeals) phrased
part,
the New York court
in these terms :13
in it,
wrong’
must
“What
show ‘a
right,
herself, i.e., a violation of her own
and not
merely wrong
‘wrong-
else,
nor
someone
conduct
anyone.
wrong’
unsocial, but not ‘a
ful’ because
We
speed through
told that one
are
who
drives
reckless
99, 100,
478 negligent guilty city and, a is of a act crowded street wrongful irrespective aof one of the con therefore, wrongful sequences. Negligent the act is, wrongful it unsocial, sense that is but and un the only travelers, social in relation to other eye because the perceives damage. vigilance risk If same, speedway act on a or were be committed wrongful quality. a course, race would lose its reasonably perceived risk The to be to be defines the imports obeyed, risk relation; and risk is range apprehen another or within the to sion. to others Subjective Objective, Seavey, Negligence, Boronkay L Robinson & 1, 6; 41 penter, Rev Car Harv (160 400). NY NE This 365 does not who a that one mean, of launches destructive course, liability always if force, force is though relieved pursues destructive, to be unex known necessary path. pected the defend ‘It was particular had notice of the method have ant should possibility if the occur, an accident would in which ordinarily рrudent clear to the of an accident was ” eye.’ reversing, a the trial law, as matter of court’s majority dismiss, motion denial of the New defendant’s Palsgraf, held that to Mrs. York court as negligence. “Negli plaintiff, there had been gence,” “like Cardozo, risk, Mr. Justice thus held relationship, giving rise of relation.”14 The a term to ests jeopardy duty, to her inter such that must be security bodily respect is within apprehension. range under What, of reasonable relationship analysis, us? The hole before the immediate water-filled, within was street, It proximity public highway, home. place this child was no tres where City, Bay boy,
passer. held in Beaudin v. A we Neg Rep 108), (4 16 Am Ann 333, 248, Cas Mich highway “may in fact who is on traveler Id., р 345 (162 NE at p 59 ALR at p 1257). 0. although traveling proper manner, over it in traveling play pastime.” In other words, includes business, he is not an because he outlaw to freedom adults use term. He remains entitled injury, negligently excavation,, inflicted. The area fre- was near a school and in an moreover, quented by the- children. water, was filled with children, presence of we drew which, seen, Palsgraf,, play. plaintiff, to it for This unlike Mrs. well within the of risk defend- zone created *14 ants’ act.
Under these circumstances what is the reasonable apprehension injury as to from the hazard created? jury permitted say aHere has been to that no rea- person anticipate might sonable escаpe that an infant upon public
from its mother and enter highway, exposed danger there to be to from this constantly' water We, hole. of course, are admon- driving, proceed ished, while to with caution in resi- particularly, vicinity areas, dential and, every schools. We are reminded that time a ball presume into the rolls attached street wo are to that it is to a who child, will follow it, and we are- fully many aware of the attractiveness nuisances legisla- to children. For tive bodies have related reasons universally placed on laws requiring drivers to down books slow in residential vicinity Why? areas, and of schools. Because apt get they children are to intо the streets, where have no business to be. of the courts, We in turn,, negligent driving have held for drivers with due Why? care in such areas. Because children are- apt get they to streets, into the no where have busi- permitted say to ness be. But here to that is imposes the water hole in the street no of care upon Why? these defendants. Because children apt get are the streets, into where no business be. Michigan Reports. majesty all short, Justice, in her and with all permitted peer upon
her wisdom been has down standing solemnly say child at her bar this public him that the hole in water-filled street front of his home was of concern to him. If the penetrate damaged words brain at all, his and hе why, makes bold ask clear: answer is “Be- you danger. cause there is no No reasonable person anticipate you might escape could ever your from into mother and run the street and fall into the hole.” ' space. pure straight outer It All of is fantasy. It is to life on this earth. unrelated requires development no treatise child to tell us years age inquisitive 8 slippery is as child months Despite a hornet and as an eel. as vigilance he times, will at when the mother utmost caring cooking, washing, make his others, for safety get-away. to his in this the situation as Is though he on the or in the frontier, lived event society jungle, or modern urban demand more does upon penalty young? him, visited Should its fault, aware his exceed the well- who not even discipline? family of normal Or measures known *15 damage or death? our it include brain It is should give, not his. to answer Upon of Mr. facts hold the we words these possibility the of an accident that Cardozo Justice ordinarily any clear the in the street “was infant possible.15 “varying eye.” is prudent inference” No pat wrapped in not have unreasonable ity If the situation for question warn “The 15Palsgraf can 101, Mm. His conduct guard had thrown be no range of reasonable court, for the 59 ALR at threatened newspaper would probability suggest v. greater and at Long jury. p 1257) Island where Here, by concession, times, plaintiff's of invasion the most it down would not : the act R. apprehension if spread wreckage Co., varying safety, knowingly and cautious mind 248 NY of her have inadvertent.” so inferences there far as involved, is bodily 339, at through willfully, pat appearances times a security. are even nothing in the station. possible, a he then, (162 question Liabil- parcel eould NE of a a matter existed as of law. Tims it are,We upon not noted, will be called to resolve the classic controversy may as to whether there be either a plaintiff compensable consequence beyond or a threatening of the risk from the horizon source, for range sight, here, adventure, within and rea- apprehension, we find sonable both the hazard and the victim. proximate
The matter cause, which so much appellees’ argument may summarily is directed, of disposed analysis place
under the made. In the first quarrel general we the law of no have statements of proximate cause as found in the first syllabus of the Case.16 It tells that, us Clumfoot injuries recover, his must be the natural, probable, consequences and foreseeable de fendant’s act and that the omission, must Such, so decide. take it, I is the normal course of dogma at events trial. But the broad not solve does particular injury cases. if the Here, is found to inadequacy resulted from of the barriers, divergence thought there can bе no reasonable the matter of causation. This is no freak accident, never-to-be-repeated event, combination of time, “If circumstance. the defendant excavates hole plaintiff’s runaway road, side horse [but runaway ] scarcely not ? his infant into it, runs pretended can he that the hole a cause very important harm, and one.”17 borrow To once Palsgraf,18 more from “The law causation, remote proximate, foreign or Here, is thus to the case before us.” foreign employed by
while
in the sense
equally
Mr. Justice
it not in
Cardozo,
if
issue,
injury
consequential,
direct, immediate,
p
17Prosser,
18Palsgraf
Clumfoot
59 ALR at
Torts
v. St. Clair Tunnel
Long
p
(2d ed),
1258).
Island R.
§
44,
Co.,
Co.,
at
p
248 NY
without proximate controverted issue of there is properly us. cause before that the instructed objected jury was it is
Finally, (which an term insurer that neither defendant safety of the in the charge) defined nowhere is care. only ordinary use and was required public to an insurer. relating claim made I find no But cause of His negligence. is What claims as some- characterized is not action it At argumentative. not. At best thing in the man, demolition up worst it sets straw fall as may by-product. which cause what has been should be unneces- said, view of in detail of manner in which write sary deal with the new defend- should, upon trial, court “accident.” claim that unavoidable ants’ this was may (de- have been some such injury Unavoidable once the barriers), adequacy pending upon in the neighborhood, dug street hole if with but so the water, allowed to remain filled operate to relieve de- does unavoidability be made clear to and such must fendants liability, language charge. the jury by appropriate and remanded for new trial. Costs Reversed appellant. concurred JJ., Kavanagh, Souris,
Edwards, J. Smith, For over (concurring). given reasons J. Black, 382, 391; Hopkins Lake, Mich my signature Inc., Magid, I. Mich 628 Benjamin Conners v. Stevens, Nielsen H. (67 1001), Henry ALR2d Inc., 130, 133, I injec 359 Mich hold that studied subject parental into case tion this child’s revers fault, contributory otherwise, constitutes cast. accordingly vote to My ible error. reverse