25 Ind. App. 308 | Ind. Ct. App. | 1900
—The appellant by proper assignment of error questions the ruling of the lower court in holding
The above strange and unusual facts are relied upon by appellee as showing actionable negligence upon the part of appellant proximately causing appellee’s damage. Was appellee’s injury the natural and probable consequence of the negligence charged to appellant, and was his injury such as might or ought to have been foreseen in the light of the attending circumstances ?
In the case of Davis v. Williams, 4 Ind. App. 487, the court said: “It is not every tortious act that makes the perpetrator liable in damages if injury occurs, even if such injury is, in some sense, produced or influenced by it. If in any such case some other power or force, beyond the control of the original actor, may be justly said to constitute the
It is possible that persons may be injured in the manner in which appellee received his injury. Sufficient proof of this is the fact that appellee was so injured. But such an injury can not be said to be one which the most prudent man would have anticipated. The manner in which appellee was injured was unusual and extraordinary and contrary to common experience. It was such an injury as could not have been foreseen or reasonably anticipated as the probable result' of appellant’s negligent acts. Under such circumstances there is no liability. Richards v. Rough, 53 Mich. 212, 18 N. W. 785; Hoag v. Lake Shore, etc., R. Co., 85 Pa. St. 293; Sjogren v. Hall, 53 Mich. 274, 18 N. W. 812; Mitchell v. Chicago, etc., R. Co., 51 Mich. 236, 16 N. W. 388; Wabash, etc., R. Co. v. Locke, 112 Ind. 404, 2 Am. St. 193; City of Allegheny v. Zimmerman, 95 Pa. St. 287; Stewart v. Strong, 20 Ind. App. 44.
Our Supreme Court, in the case of Wabash, etc., R. Co. v. Locke, supra, say: “Mischief, which could by no reasonable possibility have been foreseen, and which no reasonable person would have anticipated, can not be taken into account as a basis upon which to predicate a wrong.”
It is said in Pollock on Torts, 36: “How a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or pthers which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order
Taking the facts as stated in the complaint, it does not appear and it cannot reasonably be inferred that appellant failed to observe such precautions for appellee’s safety as were reasonable and prudent under the' circumstances.
In the case of Wood v. Pennsylvania R. Co., 177 Pa. St. 306, 35 Atl. 699, 35 L. R. A. 199, it is said: “Again, the competent railroad engineer knows, from his own experience and that of others in like employment, that to approach a grade highway crossing with a rapidly moving train without warning is dangerous to the lives and limbs of the public using the crossing; he knows death and injury are the probable consequences of his neglect of duty, therefore he gives warning. But does any one believe the natural and probable consequence of standing fifty feet from a crossing, to the one side of a railroad, when a train is approaching, either with or without warning, is death or injury ? Do not the most prudent, as well as the public generally, all over the land, do just this thing every day, without fear of danger ? The crowded platforms and grounds of railroad stations, generally located at crossings, alongside of approaching, departing, and swiftly passing trains, prove that the public, from experience and observation, do not, in that situation, foresee any danger from trains. They are there, because, in their judgment, although it is possible a train may strike an object, animate or inanimate, on the track, and hurl it against them, such a consequence is so highly improbable that it suggests no sense of danger; they feel as secure as if in their homes; to them it is no more probable than that a train at that point will jump the track and run over them. If such a consequence as here resulted was not natural, probable, or foreseeable to anybody else, should defendant, under the rule laid down in Hoag v. Lake Shore, etc., R. Co., 85 Pa. St. 293, be chargeable with the consequence? Clearly it was not the natural and probable consequence of its neglect to give warning, and therefore was
We think the supreme court of Pennsylvania, in the above quoted case, correctly stated the law upon facts not materially different from the case at bar. It was error to overrule the demurrer to the complaint.
Judgment reversed, with instructions to the lower court to sustain appellant’s demurrer to appellee’s complaint.