This is an action of the case against the defendant, in his capacity as town treasurer of Middletown, to recover damages for injuries suffered by the plaintiff, Mrs. Mahogany, by reason of the neglect of the town to keep one of its highways safe and convenient for travellers, as required by the statute. The neglect complained of was that the town permitted a post to remain on the side of the highway, so near to the travelled part as to be dangerous to persons driving along such highway. At the trial the defendant contended that, as the accident occurred on the side of the road, outside of the travelled carriage way, and as the plaintiff, Mrs. Mahogany, left the carriage way without necessity for so doing occasioned by the condition of the highway, she assumed the risk of, or incident to, travеlling outside of he carriage way. The plaintiffs in reply alleged, and offered testimony to prove, that one Abner B. Lawton was at the time driving on the highway opposite, or nearly opposite, to thе post complained of, and that he neglected to turn to the right of the centre 1 of the travelled part of the road, and thereby compelled Mrs. Mahogany to drive upon the side of the roаd, where, notwithstanding she was in the exercise of due care, her carriage came in contact with the post and she sustained the injuries, to recover damages for which this suit is brought. The defendant urged, in reply to this allegation of the plaintiffs, that if the injuries resulted from the wrongful act of Lawton in not di-iving to the right of the centre of the travelled way, or would not have occurred but for his act, the town was not liable, аnd requested the court to so instruct the jury. The court, however, charged the jury that, notwithstanding the accident might not have occurred but for the wrongful act of Lawton in not turning to the right of the travelled path, yet, if the accident would not have occurred but for existence of the post on the bank, or side of the road, the town, if otherwise *481 liable, would not bo relieved-simply because tbe. wrongful conduct of Lawton concurred in causing tbe accident or injury. The defendant excepted to this charge, and also to the refusal to charge according to his request, and, the jury having returned a verdict for the рlaintiffs, now petitions for a new trial, alleging among other grounds that the court erred in its instruction and refusal to instruct as stated above.
The instruction of the court to the jury applied to the case at bar the rule.adopted in
Hampson
v. Taylor, 15 R. I. 83, 85, a rule supported by numerous cases. In all these cases, however, the cause concurring with the defect in the highway to produce the injury was a natural cause, оr pure accident, for which no person was responsible, and not, as in the case at bar, the independent act of a responsible person. Such an act, it is said, arrests causation, being regarded as the proximate cause of the injury, the original negligence being considered merely as its remote cause. As in law it is the proximate and not the remote cause which is regarded, he whо is guilty of the original negligence is not chargeable,Cut redress must be sought from him who directly caused the injuryl Perhaps this principle is nowhere more clearly stated than by Wharton in his treatise on the Law of Negligence. In § 134 he propounds this question : “ Supposing that if it had not been for the intervention of a responsible third party the defendant’s negligence would have produced no damage to .the plaintiff, is the dеfendant liable to the plaintiff ? ” and proceeds: “ This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent in a particular subject matter. Another person moving independently comes in, and, either negligently, or maliciously, so acts as to make my negligence injurious to a third person. If so, the person intervening acts as a non-conductor and insulates my negligence so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. I may be liable to him for my negligence in getting him into difficulty, but I am not liable to others for the negligence which he alone was the cause of making operative.” And again, in § 999, he remarks: “ It has been
*482
already seen that the negligence of a third party intervening between the defendant’s negligence and damage breaks the causal cоnnection between the two. . . . There is no road that has not imperfections, and if a traveller is forced against one of these through the negligence of a third party it is from the latter, and not from the tоwn, that redress must be sought.” And see, also, 2 Thompson on Negligence, 1089, § 6;
Houfe
v.
Town of Fulton,
29 Wisc. 296, 307;
Cuff, Adm’x,
v.
Newark & N. Y. R. R. Co.
35 N. J. Law, 17, 32. In
Rowell
v.
City of Lowell,
The rule above stated is subject to the qualification that, if the , intervening act is such as might reasonably have been anticipated ¡ as the natural or probable result of the original negligence, the j original negligence will, notwithstanding such intervening act, be ¡ regarded as the proximate cause of the injury, and will render j the person guilty of it chargeable. Wharton, Law of Negligence, / § 145 ; 2 Thompson on Nеgligence, 1089, § 6 ;
Lane
v. Atlantic
Works,
Petition granted.
Note. — Compare Yeaw v. Williams, 15 R. I. 20.
Notes
As required by Pub. Stat. R.I. cap. 66, § 1. See State v. Collins, ante, p. 371.