75 Ark. 133 | Ark. | 1905
McCaskill’s house was .burning in the night time, and three streams of water were playing upon it, one from a hose crossing Markham street which lay across the street car track. The hose was four or five inches in diameter, and the street brilliantly illuminated from the burning building which was near by. A car of appellant company ran over the hose, and cut it on each rail. There was no reason why the motorman could not have seen it for a long distance. He denies seeing the hose, but tells of watching the fire as he came near it. McCaskill’s evidence tended to prove that the cessation of water from the hose stopped the work of taking furniture out of the burning house, and that the fire was in such a state of control that most of his furniture could have been rescued if this stream of water had not suddenly ceased. The evidence conflicted, and the issues went to a jury, and a verdict for McCaskill resulted. The Reporter will set out the instructions and the substance of the testimony.
The appellant presents the case of Mott v. Hudson River Ry. Co., 1 Robertson; 585, as conclusive against appellee’s action. This is a decision of the Superior Court of the City of New York, and the case in question was heard and determined before Justices Robertson, White and Barbour, and decided in 1863. The point reaching to this case is thus stated in the syllabus: “Damages caused by the spreading of a fire, in consequence of the defendant’s negligently injuring a hose actually in use in extinguishing it, whereby the only supply of water available for the purpose was stopped, are too remote to sustain an action.” Justice- White, in a dissenting opinion, pointed out that cutting a fire hose in an instance remotely causing loss would not be actionable, and then added: “But in the present instance the hose was actually carrying water upon the plaintiff’s burning building and rapidly extinguishing the fire, when it was cut. The plaintiff was instantly deprived by this act of the flow of water upon his house, and the flames that had been going out under the action of the hose immediately rose and destroyed that and other property owned by him. It would be difficult to state a case of more direct or immediate damage resulting from a specific act.” The same question came before the Supreme Judicial Court of Massachusetts in 1872, and the Mott case was cited as first in a long list of cases relied upon by the appellant, but it did not receive notice in the opinion. After discussing the question and reviewing cases on proximate causes, the court said: “The law regards practical distinctions, rather than those which are merely theoretical; and practically, when a man cuts off the hose through which firemen are throwing a stream upon a burning building, and thereupon the building is consumed for want of water to extinguish it, his act it to be regarded as the direct and efficient cause of the injury.” Metallic Compression Casting Co. v. Fitchburg Ry. Co., 109 Mass. 277.
The high standing of the Massachusetts court, the sound reasoning given, reinforced by the able dissenting opinion in the Mott case, impel the court to follow it, rather than the Mott case.
No other questions are presented, and the judgment is affirmed.