*1 SPRING 1906. TERM, Telephone HartoN fixed. witbin value has tbe personal property always law a
been the fitted theory peculiarly to assess the limitation damages juris- —hence diction of I do not care discuss fur- justices. question ther than to concurrence is based say my entirely upon the doctrine of stare decisis. think probable decided will some result cases logical day compel court to and return to standard re-examine fixed law. of the decisions of this organic light His Honor ruled court correctly.
Walker, concurs J., opinion. concurring
HARTON v. TELEPHONE CO.
(Filed 22, 1906). May n —(cid:127) — Proximate Gause Intervening Telephones Negligence — Ben- Question Jury Contributory Negligencе Act— for — eficiary Recovery. negligence “yes,” an issue to defendant’s In order to answer
1. act must must have been a act and of the intestate’s death. have been the company from the fall- against telephone a for death In an action negli- jury find that the defendant ing poles, one of its if the (cid:127) dangerous condition when pole to remain in a gently allowed the along highway, injure persons passing likely to fall and it was road, traveller, fall,; in order to clear blocking and it did killed the fell and pole so that later replaced the passway, the resultant the traveler and this act of expected reasonably have might the defendant events which were case the in such original negligence, of its as a result to occur “yes.” be answered negligence should issue as to defendant’s first IN THE SUPREME COURT. Go. *2 may proximate 3. There be than one more cause of injury, an and when a free claimant is himself from blame and a defendant sued responsible plaintiff, for one such of to the action sustained, there though will be other causes concurring contributing to and the 4. The cause of the event must be that understood to be sequence, by any which natural and continuous unbroken new cause, event, independеnt produces and that without which Proximity in such event would not have occurred. of time point however, no of space, the definition. by an intervening 5. The test to determine whether the act of agent intelligent which has become the efficient cause of cause, breaking injury, independent shall a new be considered original negligence of sequence by in motion the of events intervening act and resultant is whether primary negligence one author could injury is expected. reasonably foreseen among opinions no two 6. in cases clear that can be Except so minds, de- left to the of fаir should be men intervening act and the resultant termine whether the wrong have rea- author of the could such that the were negligent his own sonably expected them to occur as a result'of act. child, father, of his as administrator brought In an action 7. child, killing his if the father damages for the of a act which guilty time of the occurrence at the negligent act was injury, his causing the concurred have rea-
; ordinary prudence could a man such character likely to result in conse- injury was sonably expected contributory this would such of his quence re- beneficiary being father recovery, the bar a covеry. dissenting. JJ., Walker, Connor n ' Willie Administrator Mary Hartón., H. H. ActioN beard Co., Judge Telephone Forest City Hartón, against 1905, of the Term, at August and a jury, Allen B. T'7. of Ruthbefokd. Court Superior had that defendant show tending evidence There SPKING- TEEM, Haeton
erected its poles along Rutherford highway County. The road had hands worked this particular part the high- six or way eight days to the prior injury, close ditching up which was pole rendered insecure and liable to fall. A road hand notified a lineman of the defendant of its unsafe condition some before days but the matter was not attended to and the fell across road with the lines attached, the road. blоcking One Carpenter, going along road awith in order to wagon, clear the him- enable way self to with the pass, assistance of two others, set back in the hole from which it had fallen, *3 and propped it, left as he it, secure. He that thought, testified with the pole down, vehicles could not that he could not have done pass; otherwise than the back in order to clear the pole way; could not have it to either side pulled without the breaking wires; that he the he and when propped pole it, left thought it was more than secure soon before; that the after, plaintiff’s intestate was the passing thе fell along highway pole killed her. other the asked the follow-
Among instructions, plaintiff ing:
3. “If should find the that defendant was you in an the unsafe and condi leaving pole standing dangerous tion, it cannot excuse itself had that the pole showing fallen and was a a short third already replaced by person time before the fall which the injured plaintiff’s should find and its unless that you falling pole was an unnatural occurrence of an event replacement would a ordinarily expected anticipated by person in the natural and course ordinary of ordinary prudence events. “If find from should the evidence that was you pole work of to the public by
rendered insecure dangerous time of the to the road hands six eight days previous that the was pole public highway; injury; alleged -158 IN THE SUPREME COURT.
Habton that the defendant’s lineman bad notice of its insecure con- dition, failed to make tire pole secure, wbicb insecurity to the dangerous said public road, travelling and the to the intestate occurred as then the alleged, defendant cannot excuse itself by that fell showing pole across said road and was back in its placed former position traveller such as to render it liable fall way again, unless find you came about a manner or from сauses which defendant fore- might reasonably seen.
7. “If find that the fell im you as and did pole alleged then the fact had jury, that it fallen been and had previously erected Mr. as he the de- Carpenter, testified, cannot avail fendant excuse for its unless find yon the action was not con- Carpenter re-erecting nected and was with not the result of fall said the first pole.”
The court declined to either of instructions, give intimated that he as follows: charge
“If find from evidence left you that the road hands insecure and such condition be reason- could foreseen would fall in that it and that ably road, *4 left this conditiоn such a of time that the defend- length ant, the exercise of could have discovered ordinary care, its was notified of it a sufficient of time to condition, or length the enable it to this would constitute repair, negligence the does not defendant; but alone entitle part negligence to recover. There must be and this plaintiff neg- if must be the real or injury; ligence after of the there is another cause the negligence and the real control, over which it had no intervenes then the of the defendant cause of the injury, negligence If find from the evidence that would not be proximate. you and as a result of this that neg- the defendant negligent, if find from and further road, fell you ligence pole SPEING TERM, C.] Oo. the evidence one Carpenter, admitted not to be an agent of the raised the company, pole and ground placed init the hole where it had been, and formerly that thereafter fell and pole injured plaintiff’s and intestate, act Carpenter the real cause of the then the the defendant would not be the proxi- mate cause of the and answer you the first issue Mo.’ This is predicated the admission of upon plaintiff that after Carpenter replaced sufficient pole, time did not elapse the defendant to discover that it had been re- placed.”
Upon refusal of His Honor to the instruction as give and requested, intimation as to his charge intended, the plaintiff submitted to a and nonsuit appealed. &
Justice Pless for the plaintiff. & McBrayer Justice & McBrayer McBorie for the de- fendant.
Hoke, J. In the as charge proposed, below cor- judge defined the rectly negligent alleged against stated order answer an properly issue as to defendant’s negligence ‘yes,’ must been negli- act must have gent been the cause of -the intestate’s death. the last of the charge, we however, think there was error to the prejudice plain- tiff which entitles him to a new trial. portiоn referred to is follows: “If find from charge the evi- you dence that the defendant was that as result of this fell in road, further you find from evidence that one admitted not to Carpenter, be raised the from the" agent company, ground in where had and that the hole placed formerly been, *5 thereafter fell intestate, and and pole plaintiff’s injured that the act of was the real of Carpenter cause the IN THE SUPREME COURT.
Hakton then the defendant would not be the and would answer proximate injury, you the first issue Mo.’ This is the admission of predicated upon after plaintiff replaced sufficient time Carpenter pole, did fоr the defendant to had been elapse discover that it replaced.” for instruction on while prayers plaintiff, free from be con criticism, entirely they may
strued as the burden of improperly putting proving element of cause involved in issue, the first the defendant, yet they substantially embody proposition if defendant left and negligently the pole dangerous so that it was to fall and position, injure threatening likely and the fall did persons passing along highway, pole across the said highway Carpenter, travelling along high in order clear the same make a way, passway, back in the from which had fallen and from pоsition fell which it later and killed the and the act intestate; again de with the resultant one which injury, Carpenter, foreseen fendant have as reasonably might consequence his such original negligence, intervening from would not prevent primary Carpenter cause of the resultant and the the proximate injury, being first issue should answer the “yes.” rejecting above the last principle proposing portion charge TIis Honor could fair only interpretation,' quoted, and we have no doubt he did to decide intended, intend, have been the fact that defendant may that notwithstanding back an insecure Carpenter рut posi negligent, fall and one on the injure from which it was likely tion and it did so fall cause the injury, highway, of events from so break the sequence original negligence cause of the from the as to same being prevent would shield defendant responsibility; error. think Though Carpen- we started, this, *6 SPEING 1906. TEEM, Telephone HaRton Co. v.
ter was
in
guilty
so
it
replacing
threatened,
and was
to fall and
did fall and
likely
kill the intestate, this would not
avail to
necessarily
protect
defendant. There
be
one
more than
may
canse
proximate
of an
well
injury,
it is
established
that when
claimant
is himself free from blame and a defendant sued is responsi-
ble for one such cause of
will
the action
plaintiff,
be sustained
be other
con-
though
causes
may
proximate
to the
In 21 Am. &
curring
contributing
Eng.
Enc.
said:
(2
495,
“To show
other causes
Ed.),
concurred
or
to the result com-
producing
contributing
of is
plained
no defense to an
There
action of negligence.
is indeed no rule better settled in this
connection
present
than that the defendant’s
render him
order to
negligence,
need
be
liable,
the sole
canse
plaintiff’s injuries.”
on
496 it is said: “When two efficient
Again
p.
proximate
causes contribute to an
if defendant’s
injury,
about one
such
he is liable.”
brought
causes,
.of
Railroad,
withstanding not the wise, was cause proximate injury, may have also been the primary negligence ? cause
There definitions of are many given in form, books all same involving principle, differing better to elucidate and however, prin- order the apply cases. That to the variant facts ciple particular given & on sec. 26, adopted Shearman Eedfield Negligence, ' IN THE SUPREME OOUET. .
as tbe one best suited to tbe explain tbe facts of ruling tbe case before us. “Tbe proximate cause of tbe says event/’ tbe author, “must understood to be wbicb in natural *7 and continuous sequence, unbroken new and inde- by any pendent cause, produces event, and without wbicb such event would not have occurred. in of time Proximity point or is space, however, no of tbe definition.” And Bar- rows on in 17, further Negligence, p. statement of tbe doc- “When trine, an says: efficient and independent, wrongful cause intervenes between tbe and tbe original wrongful tbe is injury ultimately suffered, former, .and tbe latter, not deemed tbe proximate cause of tbe is no There injury.” doubt here that tbe act of intervened whether Carpenter or an wrongful otherwise, that it was efficient cause of tbe itwas a in- injury; new, and, but more an especially, cause? dependent For this is before tbe required sequence is events broken, tbe or original primary negligence becomes “insulated” and ceases to be tbe cause. of this feature of tbe definition, Barrоws Speaking Neg- further “An a new lgence efficient cause is says: intervening tbe cause wbicb breaks connection with tbe origi- nal cause and itself for result becomes tbe responsible solely in It must be question. independent force, super- entirely cau- its effect in tbe tbe ceding oi’iginal rendering action is immaterial new elements or sation remote. It bow many tbe, forces have been cause remains introduced, Thus, for shifted. where active, tbe its result liability and is unattended, a unhitched in tbe street and horse left -and runs but maliciously by stranger away; frightened and the be would not have run away tbe intervening not have it was thе occurred, yet first instance wbicb made the runaway pos- tbe driver nor oblit- has not been This superceded sible. result- injuries driver is for tbe responsible tbe erated, be of cause however, responsible If, intervening ing. G] TEEM, SPEING HARTON TELEPHONE, V. it,
snob a nature that would be unreasonable to expect pru dent man to its will anticipate happening, be respon sible for from damage solely tbe intervention. Tbe resulting cause intervening culpable, intentional or merely To same & negligent.” tbe effect Shearman sec. Redfield, 34, further of tbe speaking sec intervening tion “In 31: tbe first place tbe causál connection must be actuаlly broken, tbe release sequence order to interrupted e that) tbe defendant Tb mere fact responsibility. another or concurs person co-operates the injury producing or contributes thereto whether small, any degree, large * * * is of no importance. is immaterial bow many 'others bad been fault at if tbe tbe defendant’s act was efficient cause tbe “If And in section 34: tbe injury.” acts of two or more *8 all persons, being culpable in law responsible for their do concur in of acts, point time, and tbe of one negligence exposes per only injured son to risk of tbe be case оther should also injury negli gent, tbe first in fault will liability depend person tbe whether tbe act of tbe other one which a man of ac ordinary experience sagacity, with all tbe antici quainted circumstances, could reasonably not. If or such could have that tbe pate person anticipated ordi act of in a natural and intervening negligence might, tbe follow tbe act of nary sequence, per original son first in fault is not of released reason tbe liability by of If have been another. could not intervening negligence then is thus tbe anticipated, intervening negligent person alone A like doctrine is down in 1 Thоmp laid responsible.” 47 to son, Commentaries on tbe Law of sections Negligence, 85 inclusive, instances of its various giving application. will be of these seen that the test laid down all by act of
writers, to determne whether tbe intervening by of an which has become tbe efficient cause agent intelligent cause, shall be considered a new and independent
464 IN THE SUPREME COURT. v. of events motion sequence breaking is whether the act intervening is resultant one that the author of the primary If could have foreseen reasonably expected. character, act of that then sequence intervening broken, of motion primary wrong events put be held of the injury. and this still decisions courts Numerous and well considered show that is a correct statement authority highest Boon, 95 U. Railroad v. S., 117; Insurance Co. doctrine. Co., Mass., 158 Co. v. Ins. 469; U. Gas S., Kellogg, Works, 111 Mass., 136; Wright Lane v. Atlantic 574; Railroad, Ill. App., Boon, “The the court says: Co. v.
In Insurance supra, cause, necessarily the efficient the one cause is are The causes that sets the other causes operation. or controlling instruments of a incidental or superior merely and the responsible causes are not the' proximate agency It is nearer time to result. ones, they may though еach other that the when the causes are independent only A care with the disaster. course, is, charged nearest rule.” will vindicate this of the authorities ful consideration Colt, J., Works, delivering Atlantic supra, In Lane v. description, “In actions says: opinion, of his neg consequences and probable liable for the natural direct result must be the omission. ligent *9 too will be considered but misconduct charged, mankind, experience usual to if, according remote third a act of The have been apprehended. to result ought necessary a condition and contributing person, intervening not excuse will effect of the original the injurious foreseen. been to have act if such ought the first wrongdoer, direct a culpable still remains The probable found test is to be anticipated, which were to consequences injurious SPRING TERM, 1906. Hakton
the number of events and subsequent which agencies might arise.” And at this page 144, further opinion declares that “It was whether immaterial the act of Horace in- Lane (the was mere tervening agent) or a inter- voluntary It was an act which the meddling. have found the de- jury fendants to have ought apprehended and provided against.” Chambers, Clark Eng. Ruling Cases, 28, facts not dissimilar to those of the ease before us, it was held that primary negligence defendant was the proximate cause of the resultant a injury,'as matter of law. In that had partially obstructed a wrongfully private carriage way barrier thereon armed with placing called a chevaux de spikes commonly some with- one, frise; — out from the authority removed defendant, the obstruction from the the same driveway placed in a near footpath by, and one on a going footpath dark along night injured the removed barrier. that Held, stated, as a matter of law the original was the wrong proximate cause of the injury.
While this decision is considera- deserving greatest tion, the itself opinion that there are cases suggests declare -the law as we now hold and we more it, think it the correct rule that, cases so clear there can be no except two men of fair opinions should among minds, be left to the to determine jury whether the intervening and the resultant were such the author of could occur original wrong reasonably them to expected as a result of his own and we hold that the ques- tion on the case these phase presented by prayers instructions should be submitted under a substantially charge find the embodying position: in breach оf its allowed remain duty, negligently in a condition where it to fall and dangerous likely injure one on the did fall, highway, road, blocking in order clear a so Carpenter, passway, replaced that it later fell and killed the act of Car-
141 —so *10 COURT. THE SUPREME IN Telephone Co. defend- events which the were the resultant injury
penter of its as a result have to occur expected ant might reasonably issue should in such the first negligence, testimony as the with such other positions answered “yes” may require. there issue of
In to the contributory regard of any- in trial no the former have been testimony seems to intestate. on the part contributory nеgligence the decision is called to attention connection, however, is which it held that Railroad, 136 N. C., 115, Davis v. plain- on was contributory the same next of kin is father and who tiff, of his interest. to the extent as a defense would be available aof was of the occurrence guilty father at the time If the the injury, causing act which concurred a man of ordinary character that of such his expected could have reasonably prudence this would be such his act, consequence to result likely a recovery. as would bar contributory negligence on the testimony, on No expressed opinion the ques- with a view to set out present have been this point is awarded. and a new trial There error tion. New Trial. now I am not prepared in result: J., concurring
Brown, but ease, Allen of Judge. the rulings hold against of Carpenter the intervention whether before determining I prefer “insulated” alleged con- and therefore all the issues, should pass that the jury have been better would that it new agree to a trial. sent not been nonsuit a voluntary had tidal proceeded case the entire done, had been If that taken. considered. to duly excepted and all us, rulings before been up the pole propped that Cаrpenter found If should be fell, that it broke so insufficient prop a rotten or with *11 'SPEING 1906. TEEM, 0.] Telephone Co. he that placed the so far out that prop it was knocked of out the wheel the place by of or that he buggy, otherwise did the work so that a manner fell the on intes- tate of his consequence I should have no dif- ficulty holding Carpenter’s the immediate cause of the that the defendant would not be liable. I think Again, there is evidence of contributory negligence the intestate. The be the plaintiff may of a beneficiary within recovery come the ruling Davis’ 136 N. C., I whole think Upon to best order new trial, to end that thе pass all the issues.
Connor, J., As case dissenting: back a new goes I trial, do not care to discuss several of the interesting difficult questions record. I wish presented upon simply do say that I not think for instructions plaintiff’s prayers could have been the instruction properly given, pro- His be Honor posed by was correct. The given plaintiff should have with and not taken proceeded trial nonsuit. voluntary evidence, the sole light was whether the of defendant was negligence cause of His Honor proximate proposed —and to submit to the After the measure jury. correctly defining after defendant’s duty regard being securing pole, in which notified of the condition it was left dangerous “If followed His said: the road Honor working rains, further find from the ad- evidence that one you Carpenter, be raised the pole mitted not to an agent company, for- it in the hole where it had from the and placed ground fell and thereafter merly been, injured then the plaintiff’s I This, be the cause injury.” I re- conceded, á
think, correct instruction. must real, act was the submit, spectfully Carpenter’s THE IN SUPREME COURT. Hartón Is with cause of the synonymous then the proximate, and exhausted of defendant could preceding be also and time at the same the real (proximate) thеreof. It must be conceded that found expressions may ilolce, as cited Mr. in which the Justice existence two causes are recognized, causing must confess to understand how two my inability indepen- *12 dent of causes, acting operating entirely independent each other, can both be said to be cause of one the proximate In a certain sense is injury. result, event the culmina- every tion of but for in event, every precedent practical purposes, the affairs of human there must be a limit found some- life, where when the to causal connection between events cease be otherwise for the of recognized purpose liability, fixing run into and convert the we abstractions of the schoolmen courts into academies for speculation. fully comprehend how more two or concurrent causes co-exist and may co-oper- in but the domain of before a ate, practical jurisprudence can be reached at fixed, which, must be legal liability point either as a conclusion or the verdict the jury, legal the ultimate is In case causa causans reached. the in in all of cases which Barrows, Mr. cited as opinion, un- I have the horse examined, as leaving hitched was a act of street, continuing negligence, of which foreseen. could consequences clearly dangerous of this court This is well illustrated decisions case, N. 122 N. and Troxler’s C., 977, Greenlee's held of the railroad C., 189, which was that the failure it se, to per company safety appliances provide the moment of the injury and because up continuing known be imminently and uniform experience long in the treated, to human life it language dangerous excluding "causa causans of the court, injury,” nowhere It is sug- the defense of contributory negligence. in not furnishing of the defendant' that the gested SPRING TEEM, Hartoít appliances that of plaintiff do tbe undertaking
work without them, were both proximate causes. it This, was evident to the court, would be to the landmarks destroy the doctrine of defining Whatever contributory negligence. may the scientific thought of the doctrine of accuracy is well- continuing settled, with its limited in oxir application, jurisprudence. excludes the simply defense of defend contributory negligence by treating ant’s as the continuing negligence cause In -the same injury. way many cases be found wherein it books is held if one leave a object dangerous in the under such highway, circumstances that a reasоnably man would prudent foresee that persons would inter passing fere with it, causing injury, original negligent treated as the In of these all eases the act was at the time of the inter continuing Milwaukee, etc., R. ference. R. 94 U. Kellogg, S., 469, a well considered and said: uniformly approved opinion, *13 is, “The there an always unbroken connection question between the act and the continuous wrongful injury oper —a ation? Did facts constitute continuous succession of so linked as make a or was events, whole, to natural together there some new and between independent cause intervening and .the It is admitted thаt is wrong injury? the rule difficult But held order application. it is generally that, to warrant a or an act not finding amounting to wanton cause of wrong, proximate injury, must that the the natural and appear probable or and that consequence wrongful to been foreseen in the cir ought light attending " * * even the natural cumstances. We do say or are, of a omission consequences probable wrongful non-fea- cases, in all to be the misfeasance or to chargeable and independ sance. are where there is sufficient They In between and the ent cause operating wrong IN THE SUPREME COURT. Habton tbe nature of there is things, transaction a succession every less more or those events, dependent upon and it preceding, is the of a to look province at this succession of events jury and ascertain facts, whether are natural or they probably connected with each other a continuous or are dis- by sequence severed new and independent this must agencies, in view determined of the circumstances at existing time.”
In case, was down and across the road; of defendant had its was exhausted. spent force, Eor sustained a traveller reason of its any injury being across the defendant was liable. came road, Carpenter along and undertook to it. In such Mr. replace condition Bishop “The remote which cause, is not sufficient says: inadequate, define, far we to be one which has so party, charge that its influence expended itself, producing minute for law’s or a cause notice; too which some inde- took of to force some- pendent merely advantage accomplish If not the or natural effect thereof. after thing probable been in cause in has some operation, independent comes not its natural or produces force prob- аble the author of the cause is not Non. effect, responsible.” I law This, think, Con. is the Law, applicable of fact for the am unable to foresee jury. the question being or, where the doctrine of double possibly, triple proximate will will for either the lead us. become necessary find several causes or the proximate court is most or nearest to the injury ultimately leading — of com- save doctrine, admiralty, rejected to the generally several causes parative negligence. recognizing *14 defendant’s it must follow when into inquiring into must be carried the inquiry that the same principle producing, resрectfully to plaintiff’s negligence regard a domain and into additional confusion submit, uncertainty abstract theories, beclouded with contradictory sufficiently N. SPRING- TERM, 1906. 471
Woody Timber and speculations I think confusing it much! terminology. safer to and be keep view, the wise maxim governed by, via via est tuta. antigua
Walker, concurs in the J., dissenting opinion.
WOODY v. TIMBER CO.
(Filed 22, 1906). May Standing Injunctions. Deeds— Timber — aWhere deed makes an conveyance many absolute of so trees marked branded, right removal, and with a way for their and con- limiting tains no clause they may the time within which removed, properly the court temporary injunction, dissolved a restraining purchaser cutting removing from the trеes. A.A. Iron & by Intermont Timber Woody against AotioN in the Co., Court of pending Superior heard Yancey, Justice, M. H. at chambers at Judge Rutherfordton, C., 21, motion continue a April 1906, tem- to the porary injunction hearing.
Action to declare void a certain deed and to restrain the timber on land described in it. cutting ais deed: -following copy consideration of Eor the sum of one hundred and dollars and thirty-two cents in hand seventy-five ($132.75) paid to the grantee grantors, receipt A. A. hereby acknowledged, Woody wife, Lydia, and sold and these transfer and bargained presents con- to Tate L. vey Ernest, described timber agent, following in the 36 tree, follows, to-wit: 7 standing poplar ash of 24 the diameter of inches in diameter,