120 Ga. 747 | Ga. | 1904
(After stating the foregoing facts.) Whether the pool was a nuisance was a controlling point. But it was an issue to be decided by the jury and not by a witness. It would, therefore, have been clearly incompetent as against the defendant to
It was .stated on the argument that the court had overruled the defendant’s demurrer in which it was insisted that a death occasioned by the maintenance of a nuisance -is not a “ homicide ” for which the Civil Code, § 3829, gives the widow a right of action. There was no exception filed to this judgment, and that question was not argued here. Under the record the controlling point is whether it appears that the death of Mr. Godwin was the result of disease occasioned by malaria or vapors generated in the pool maintained by the defendant, and whether there was any error in the charge of the court on this issue. That he died of malaria was established, but it appeared that in every part of the city, and in portions thereof remote from the pool, many other persons, at the time of Mr. Godwin’s illness, suffered from the same disease. It also appeared that in a short distance from his residence there was another excavation which likewise geiierated offensive odors, and that he himself thought the latter was the cause of his sickness. The burden of proof was on the plaintiff, and, in the light of the evidence, it was proper to charge that the jury must be satisfied that the death was occasioned by causes originating in the pool and not elsewhere. There was nothing before them by which they could determine which of the many causes in existence operated to produce this sickness, or which of these causes predominated the one over the other. Nor was there any request that the court should charge the jury on this subject, and theré was nothing in the pleadings which suggested such an issue.
It is assigned as error that the court instructed the jury that the nuisance referred to in the petition must have been the “immediate and proximate cause” of Mr. Godwin’s death. It would have been better to have said “natural and proximate cause;” for if this charge meant that the defendant was only responsible for the immediate results of its acts, as distinguished from the consequential results, it would have been error. But in the light of the whole charge, it is clear that the jury could not- have thus understood the instruction, nor that it was necessary for them to find that death “speedily” resulted from the maintenance of the nuisance, but that they understood rather that they could not find for the plaintiff if it appeared that the sickness and death had been occasioned by other nuisances in the town, or if he had died as a consequence of a cause not directly and proximately occasioned by the pool referred to in the declaration. In discussing legal causation, the phrase “proximate cause” does not necessarily mean that which is nearest, but refers rather to the efficient cause, and in this sense is sometimes referred to as the “immediate and direct” cause as opposed to “remote.” And the words “proximate,” “immediate,” and “ direct ” are frequently used as synonymous. Compare Mayor of Savannah v. Cleary, 67 Ga. 154 (3); Sharp v. Parker, 108 Ga. 805; Stevens v. Stevens, 96 Ga. 374 (3); Civil Code, §3911; 1 Thomp. Neg. (2d ed.) 47, 49; Webster’s Int. Dic. s. v. “immediate.”
The other assignments are sufficiently dealt with in the head-notes. There was no error in refusing to grant a new trial.
Judgment affirmed.
