80 N.Y.S. 114 | N.Y. App. Div. | 1903
Lead Opinion
The case was heretofore before this court on appeal from a judgment dismissing the complaint upon the pleadings. (See Leeds v. New York Telephone Co., 64 App. Div. 484.) In the opinion then delivered for a reversal of the judgment, Mr. Justice Sewell, after an elaborate analysis of the authorities, reached the conclusion that the facts stated in the complaint, if duly established by evidence, would require a submission to the jury of the question whether the
It is contended by the defendant that even though the defendant was negligent in securing and maintaining the wire by passing it around the chimney, such negligence cannot be regarded as the proximate cause of the accident, in that the allegation in the complaint is that the wire was struck above the surface of the street by the arm of the derrick operated by workmen engaged in the construction of a building on the lot opposite, over which the telephonic wire ran, causing the chimney to break and the brick thereof to fall and to strike the plaintiff. It is true that the chimney did not fall from the mere weight of the wire, and might not have fallen if the wire had not been struck by the arm of the derrick, but this fact did not, as a matter of law, make the striking of the wire the proximate
We held further that it was for the jury to say whether the accident could, have happened but for the negligence of the defendant in running and maintaining a wire across the street at a low elevation over the building in process of construction; that the defendant was responsible for any negligent condition existing by reason of its passive acquiescence, whether such acquiescence followed actual knowledge of danger or resulted from a negligent failure to acquire such knowledge; and that the fair intendment from the circumstances alleged was “ that although the defendant and the workmen on the building acted independently of each other, the striking of the wire by the arm of the derrick was not an independent force that came in and produced the injury, but was a single act caused by the concurrent negligence of the parties and that the plaintiff would have escaped injury without the co-operation of one or-the other of the causes for which the defendant is responsible.”
We further said (p. 489): “ The case presented by the complaint bears no analogy to that of Laidlaw v. Sage (158 N. Y. 73).
“ There was no allegation or proof in that case which tended to show that defendant was in any way responsible for .the explosion,
And finally we said: “ It seems to us that, under the allegations of the complaint, the question whether the defendant was in fault, whether the accident was wholly attributable to the negligence of those engaged in constructing the building, was one of fact for the jury, and that the learned .trial judge erred in holding that the proximate cause of the accident was the striking of the wire by the arm of the derrick.”
In the brief now presented the learned counsel for the appellant endeavor to show that the decision of the former appeal is not conclusive of the questions raised upon the trial. A careful examination of the record, however, leads to the conclusion that all the points presented for review, excepting those which will be specially considered in this opinion, are either specifically embraced within that decision or necessarily result from the principles then announced. It is also claimed on behalf of the appellant that the authorities cited in the former opinion, or some of them, do not support the views then expressed. On both points it is sufficient to say that we •deem the decision controlling and conclusive in this action, and that even if doubt existed no re-examination on this appeal of the soundness or accuracy of our former view would be consistent with a due regard for the rights of the litigants or the orderly administration of justice. (Dougherty v. Trustees, 5 App. Div. 625 ; New York Bank Note Co. v. Hamilton Bank Note Co., 28 id. 411,418; Wild v. Porter, 59 id. 350.)
It may be noted, however, that the question of what constitutes proximate cause has since been considered in this court in the recent case of Travell v. Bannerman (7I App. Div. 439) and the same conclusion reached as in this case on the first appeal. Mr. Justice Woodward, writing for the majority of the court, said (p. 443): “ But the defendant contends that the materials in question in the case at bar were harmless until two outside agencies intervened, the boy who carried the materials from the lot to the street and the boy who struck the mass with a rock. Counsel continues with the following extraordinary statement in italics: 1 In other words, it (the lump which exploded) was not dangerous until made so, not by the defendant, but by the plaintiff and his companions.’ As well might he urge
‘ It is immaterial whether the act of (the older boy) was mere negligence or a voluntary intermeddling. It was an act which the jury have found the defendants ought to have apprehended and provided against.’
“ The maxim, causa próxima, non remota, spectatur, does not mean that the cause which is nearest in time or space to the result is necessarily to be regarded as the proximate cause ( Vandenburgh v. Truax, 4 Den. 464; Guille v. Swan, 19 Johns. 381; Thomas v. Winchester, supra; Eckert v. Long Island R. R. Co., 43 N. Y. 502; Gibney v. State, 137 id. 1); and, as Mr. Justice Jenks has pointed out, in Trapp v. McClellan (68 App. Div. 362, 368), the primary cause may be the proximate cause of a disaster.
“ It is also a well-known rule that if the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover damages from either or both, and neither can successfully plead that the negligence of the other contributed to the injury. (Congreve v. Morgan, 18 N. Y. 84; Cole
The law governing this case having been settled by our former decision, there remains for consideration only the allegation of errors committed at the trial.
The appellant contends that the learned trial justice erred in rulings upon the evidence and in the charge to the jury. We find no tenable grounds for such contention. We think it was proper to permit proof of the actual conditions existing at the time of the occurrence. This includes the proof which was objected to of the defective nature of the mortar in the chimney occasioned by the lapse of time and the natural action of the elements, and also of the appearance of the brick and mortar when the chimney fell into the street. The photograph of the building on which the chimney stood was properly received in evidence although it was taken some time after the accident. (Cowley v. People, 83 N. Y. 464, 476; Warner v. Village of Randolph, 18 App. Div. 458, 464.) There is no claim that that building differed in appearance at the time the photograph was taken from that which it presented at the time of the accident, and if other objects were exhibited upon the photograph which the appellant deemed prejudicial, the objection, if distinctly raised at the trial, might easily have been obviated by the court.
No error was committed in rejecting the written instrument executed by the plaintiff in favor of the Jackson Architectural Iron Works, the corporation in charge of the derrick which struck the wire. It was not under seal and was not executed by the company. There was no proof of its delivery. It did not release the iron works (Schramm v. Brooklyn Heights R. R. Co., 35 App. Div. 334), and it expressly reserved tÜe defendant from the operation of its provisions. Assuming that it might have been competent evidence on the question of motive on the part of some witness connected with the iron works as employee or otherwise, it was not competent as against the credibility of all the plaintiff’s witnesses generally as indicated- by the expression of the appellant’s counsel in offering it as legitimate evidence bearing upon “the motives of these witnesses who have testified here.” There was nothing to show that any of the witnesses knew of the document, or could
The appellant requested the court to charge that “ It was not the duty of the defendant to watch for the erection of buildings under its wires, or to inquire as to the intended height thereof.” The response of the court was as follows: “ As to that, I charge the duty was.the duty of reasonable care. The duty was reasonable care proportioned to the apparent dangers of the situation known, or that should have been known with reasonable care.” This stated the correct rule of' law. It was not, as suggested by the. counsel, equivalent to saying that the defendant was bound to watch the erection of all buildings in the neighborhood of its many miles of wire, and to inquire as to their proposed dimensions, but was only equivalent to submitting to the jury the question of determining the requirements in that regard which the conditions surrounding the scene of the accident imposed on the defendant with respect to the one wire under consideration in compliance with the legal duty of exercising reasonable care.
No other exception has been urged, either in the brief or on the argument, as involving ground of error.
The judgment and order should be affirmed.
Bartlett and Woodward, JJ., concurred; Goodrich, P. J., read for reversal.
5 M. & S. 198. f 6 N. Y. 397.
Dissenting Opinion
I dissent, from the opinion of Mr. Justice Hirschberg, for the reason that the existence of the defendant’s wire about the chimney was not the proximate cause of the accident. The wire was secure and the chimney in no danger of falling except for the intervening act of the persons operating the derrick. Laidlaw v. Sage (158 N. Y. 73) contains a definition and discussion of proximate cause applicable to the facts of the case at bar. At page 99, Judge Martin, speaking for the court, quotes with approval from Bishop on Non-Contract Law (§ 42), Shearman & Redfield on. Negligence (4th ed.. § 26) and Wharton on Negligence (§ 134), and reviews the author-; ities on the subject. The conclusion of the court is well expressed • in. the syllabus: “ The proximate cause of an event is that which, iif
The careful review of authorities on proximate cause by Mr. Justice Jenks, in Trapp v. McClellan (68 App. Div. 362), in which all the members of the court concurred, is the latest expression of our opinion upon the subject, and renders further discussion by me unnecessary. What he said in that case with reference to a rope which was broken by the act of another person than the defendant is applicable here (p. 367): “The placing of the rope * * * was the ‘ causa sine qua non,’, but the starting * * * was the ‘ causa causansJ ”
The opinion of Mr. Justicó Sewell, on the former appeal in the present case, was concurred in by two members of the court, while two others concurred in the result. I concurred in the result. In the present record, I not only find no evidence which makes the presence of the wire the proximate cause of the accident, but I find evidence which makes the negligent working of the derrick, with which the defendant had no connection, the intervening and sole proximate cause of the plaintiffs injury.
Under the authorities cited, I think the judgment and order should be reversed.
Judgment and order affirmed, with costs.