74 F. 104 | 6th Cir. | 1896
(after stating the facts as above). The facts stated in the petition make a case' where two acts of alleged negligence combined to bring about a catastrophe by which plaintiff sustained severe personal injuries. We will consider these acts separately. First, as to the manner in which plaintiff's horses were frightened. The averment is that the car was standing when plaintiff undertook to pass it, and that when he was alongside of the car the servants of defendant company wrongfully, carelessly, and negligently started the car, and that “the noise caused by the same and the appliances thereto-’ frightened his horses, etc. No circumstance is stated indicating any unusual stoppage, or that there was anything said or done to induce plaintiff to believe that the stop was anything more than an ordinary stop to let off or take on passengers, or that the car would stand until he could pass it. The rights of both parties to the use of the street for their respective purposes were equal. ’ Plaintiff was no more obliged to wait and follow the car than it was obliged to wait and follow' him. The court may take notice of the mode in which the business of such companies is conducted, and assume that plaintiff was aware of the usual and ordinary operation of an electric street-car line. No facts are stated in support of the epithets concerning the starting of the car. Why was the start then made “wrongful, careless, and negligent”? No facts are stated which will enable the court or jury to answer. The noise consequent upon the starting is averred to have frightened Ms horses. But, if the noise was the usual and necessary noise incident to the operation of such a car, then it was not, under ordinary circumstances, either wrongful or negligent. That the plaintiff was driving alongside the car when it was started does not in itself imply that it was negligence to start the car. Undoubtedly, if plaintiff’s horses had shown indications of fright before the car was started, and this had been seen by the servants of defendant, it might very well be.submitted to a jury whether to start the car under such circumstances would not he negligence. Traction Co. v. Lightcap, 17 U. S. App. 605, 10 C. C. A. 46, and 61 Fed. 762. But it is not averred that plaintiff’s horses were frightened before the car started, or even that plaintiff’s situation was known to the servants of defendant when they did start the car. Neither is it averred that any unusual or unnecessary noise was made in starting.
The learned circuit judge was of opinion that, if it were conceded that the piling of snow in the street in the manner described was negligence, it was not the proximate cause of the accident. As we have before stated, the averments of the declaration make a case where two causes combined to produce the catastrophe, each measurably independent of the other. If the horses of the plaintiff had ' not become frightened, he would probably have sustained no injury. That they were frightened, and suddenly started or swerved, so as to carry his buggy onto this pile of hardened snow, was, as we have seen, not the culpable fault of the defendant. Neither was the plaintiff at fault, for he avers that his horses were gentle, and that in coming up from behind the car he could not see the mass of snow in advance of the car, and on one side of the street. But if he had seen the obstruction, and it also appeared that the space between the car and this bank of snow and ice was wide enough to enable him to pass the car without driving over the obstruction, it could not be said, as a matter of law, that he would be guilty of contributory
*Tt is further, argued that (ho direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an eiliclent cause, — causa causans, — this is no doubt strictly true; but that is not the sense In which the Jaw uses the term in ¡his connection. The question is, was it causa sine qua non, — a cause which, if it had not existed, the injury would not have (aken place; an occasional cause? And that is a question of fact, unless the causal connection is evidently not proximate. Railroad Co. v. Kellogg, 94 U. S. 469. The rule laid down by Willes, J., in Daniel v. Railway Co.. L. R. 3 C. P. 210, 222, and approved by the exchequer chamber, Id. 5<>1. and by the house of lords, I,. R. 5 H. L. 45, was this: Tt is necessary for the plaintiff 1;o establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendant might and ought to have resorted to.’ ” '
The case stated by the petition was sufficient to justify a submission to a jury of the question as to whether under all the circumstances the mass of hardened snow negligently piled upon the highway was not the legal cause of the accident which resulted in injury to the plaintiff.
The judgment must be reversed and the cause remanded, with directions to overrule the demurrer.