43 N.Y.S. 988 | N.Y. App. Div. | 1897
Lead Opinion
The question of fact upon which arises the principal contention of the defendants upon this appeal, as to whether the injury to Mrs. Wooster, which resulted from the defendants’ negligence, was the proximate cause of her death, was clearly a-question for the jury, and was fairly submitted to them by the learned trial court. The plaintiff having established the injury which might be productive of the result claimed, and shown a state of facts that would naturally produce it, if an intervening cause were established sufficient, as a matter of law, to show another cause of the death, the burden of doing so devolved upon the defendant." A careful examination of the whole evidence in the case satisfies us. that this was not done. At least so far accomplished as to justify the trial court in taking the question from the jury.
The fact that the deceased survived the accident a year and four or five months is greatly relied upon .by the defendants .to justify their position, that a presumption has obtained from the lapse of time that some intervening cause not connected with the accident' caused the death of Mrs. Wooster, and they refer to the common, law presumption that the injury was not the proximate cause of the death, because it did not occur within a year and a day after the injury. This was a rule of the common law in relation to homicide, and does not prevail in this State in criminal cases, and has no application to civil cases. (Schlichting v. Wintgen, 25 Hun, 626.) That was an action" to recover damages for the negligent killing of a person who died a year and seventeen days after the injury. (And see, also, Sias, as Admin., v. Rochester R. Co., 92 Hun, 140.) .But this, lapse of time was a circumstance to be. submitted to the jury hi connection with the other evidence in the case.
The appellants’ counsel relies principally upon Scheffer v. Railroad Co. (105 U. S. 249), which was a railway collision case, where a passenger was injured and afterwards became disordered in mind and body, and some eight months after the accident committed suicide. In an action by his representatives.to recover damages for his death, it was held that the proximate cause of his death was the suicide and not the injury received ■ by the deceased. It did not seem susceptible of clear proof that the injury caused the suicide; whether it did or not was necessarily a matter of conjecture. Could
In Ehrgott v. The Mayor, etc., of New York City (96 N. Y. 264) the plaintiff drove into a ditch in the street, his horses jumped, the axle of his carriage was broken, and he was dragged partly over the dashboard. He procured another carriage, the matter was reported to the police, and the plaintiff drove several miles to his home, which took several hours, during which time he was exposed to the cold rain, and his clothes became satarated with water. The plaintiff’s evidence tended to show that the injuries which resulted were caused by the strain and shock of the accident, and the defendant gave evidence tending to show that the diseases were the result of the subsequent exposure to the cold rain. The trial court charged that, whether his injuries resulted from the strain and shock, or from the exposure after the accident, the defendant was still responsible for the injuries from which the plaintiff was suffering. Upon appeal, .the Court of Appeals sustained this charge, and the opinion of Judge Earl in the case tends to sustain the conclusions here reached.
Reference may also profitably be had to Pollett v. Long (56 N. Y. 200); Sauter v. The N. Y. Central & H. R. R. R. Co. (66 id.
. The appellants complain that the charge of the court was to- the effect that if the injuries caused the abscess, and the abscess blood poison, and the blood poison caused the gastritis from which Mrs. Wooster died, the plaintiff might recoven
The whole charge must be taken together. The court did charge that unless the death was the probable and natural result of the injury there could be no recovery. Also, that unless the gastritis was the natural and probable result of the fall, there could be no-recovery. Also, that they could not find for the plaintiff unless they could say as a matter of reason and not conjecture, that the fall was' the proximate cause of death, and the court added: “ There must not be a link missing. You must find the chain complete. For • instance, the injury which she received caused the abscess; the abscess the blood poison, and the blood poison the gastritis and from that she died.”
The matter excepted to was rather by way of illustration.
The trend of the cases, both civil and criminal, is in the direction .that so long and so far as the ultimate result can be traced directly to the first great cause, though through successive stages, the responsibility .rests with the one who put in operation the chain of events which wronged or injured the plaintiff. Particularly is this so in cases of this character.
We find no reversible error in the charge or in the exceptions taken thereto, or to the refusals to charge.
The jury awarded a verdict to the plaintiff of $3,000. The plaintiff, the next of kin, was before them, They could judge from his appearance something as to the years that should be allotted to him in the future. They found a penniless and dependent old man whose span of life might be stretched out a decade.. The only child upon whom he could depend for his support in his old age, and; who .was-comfortably supporting him at the time she was injured, had been taken away from him by the negligence of the defendants, as
The judgment and order should be affirmed, with costs.
All concurred, except Green, J., dissenting.
Dissenting Opinion
All damages must be the result of the injury complained of; and in the proof of damages both parties must tie confined to the principal transaction and to its attendant circumstances and natural results; for these alone- are put in issue. These results include all the damages to the plaintiff of which the injurious act of the defendant was the efficient cause, though, in point of time, such damages, did not occur until some time after the act done. (2 Greed, on Ev,. §§ 254-256.) In other language, the damages miist be the natural and reasonable result of the defendant’s act; such a consequence as im, the ordinary course of things would flow from the act-. (Victorian Railways Commissioners v. Coultas, 13 App. Cas. 225.)
Remote damages may be said to be those which are not an ordinary and natural, not an expected, not a necessary and usual result of the negligent act, or those which depend upon a concurrence of accidental and varying circumstances over which the negligent party has no control. (Webb v. Rome, etc., R. Co., 49 N. Y. 420.)
In determining the constituents of a remote cause, an eminent legal author offers this solution : “ And the inadequate remote cause, which is not sufficient to charge the party, we may define to be one which has so far expended itself, that its influence in producing the injury is too minute for the law’s notice, or a cause which some independent force merely took advantage of to accomplish .something not the probable or natural effect thereof. To illustrate: * * * if, after the cause in question has been in operation, some independent force comes in and produces an injury not its natural or probable effect, the author of the cause is not responsible.” (Bish. Non-Cont. §§ 41, 42.) In the language of Grover, J., in Pollett v. Long (56 N. Y. 200): “ The party is liable for the natural and probable consequence of his wrongful act or omission, but not those which are remote and speculative. The law will not enter upon inquiries as to the latter, for the reason that such a degree of certainty can
“ ‘ In order to make a defendant liable, his negligence must be the causa causans, and not merely a causa sine qua non.’’ * * *
‘ A proximate cause of an event must be understood to be that which, in a , natural and continuous sequence, unbvohen by any new cause, produces that event, and iviihout which that event would not have occurred.’ * * ■ * ‘ Where an injury to one is caused by, and is the natural and probable result of, the wrongful act or omission of another, such other is liable therefor, although other causes, p%(t in. motion by the act or omission, and which, in the absence thereof, . would not have produced the result, contribute to the injury.’ ”
(Roberton v. Mayor, etc., of N. Y., 7 Misc. Rep. 645 ; 149 N. Y. 609.)
In Shearman and Redfield on Negligence (§ 742) the doctrine is stated in these words: “ There is substantial uniformity of doctrine that every such subsequently developed disease which would natu-. rally ensue from the injury, a/nd which ca/nnot be shown to ha/oe resulted from a sufficient independent cause, must be imputed to the author of the original injury.” In a recent work it is stated .that it must appear that the death was the result of the act or neglect, and not of the intervening cause. But the death will be referred to the act if it was sufficient to cause the death, unless it be shown that the death must have resulted from the intervening cause, independently of the injury. (Tiff. on Death by Wrongf. Act. §76.)
In Ehrgott v. Mayor, etc., of N. Y. (96 N. Y. 264, 281, 282) the court said that “ the true rule, broadly stated, is that a wrongdoer is liable for the damages which he causes by his miscondjict.' But this rule must be practicable and reasonable, and hence it is it has its limitations. A rule, to be of practicable value in the administration of the law, must be reasonably* certain. It is impossible to trace any wrong to all its consequences. They may be connected together and involved in an infinite concatenation of circumstances. * * * The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct ; and what are such consequences must generally be left for the determination of the jury.” The court there stated that the exposure
In Schoen v. Dry Dock, etc., R. Co. (26 J. & S. 149; 9 N. Y. Supp. 109) it was held that the burden is upon the plaintiff to establish, as a part of his case and by competent evidence, that the wrongful act or neglect was the actual cause of death. The decedent, a boy of five years of age, was injured by the wheel of a car passing over his hand, and was taken to the hospital, where lie died twenty days thereafter. While there his hand was amputated.. Ho evidence was given that the injury was sufficient to cause death, or to require amputation. The only witness called was the coroner’s physician, who had never seen the decedent until after his death, and had no personal knowledge as to the character of the injuries which resulted in the amputation. He testified .that there were no other signs of violence than the amputated arm, and that the amputation of a person’s arm is not usually fatal. As the result of a post mortem examination, which had disclosed that the left side of the pleura or membrane involving the lung was in a state of acute pleuritic inflammation, he undertook to say that, in his opinion, the cause of death was exhaustion and acute pleurisy, following in the wake of the amputation, but he did not account in any way for the''origin of the pleurisy. ' “As the case was left, the pleurisy might have come from a cold or exposure before the accident, or from the condition of the boy immediately preceding the .accident, although he then appeared in health, or from subsequent
In Dickson v. Hollister (123 Penn. 421) a physician testified that erysipelas supervened in a few days-; that it frequently, though hot usually, - follows wounds, blit if there had been no wound there would have been no erysipelas. The court charged that, if the erysipelas would not have occurred if the injury had not happened, it was to be considered by the jury as pa/rt of the injury itself. The appellate court pertinently observed : “ Although, according to the testimony of the medical experts, erysipelas is not a necessary consequence of such an injury, yet it is conceded that in frequent instances it does follow flesh wounds. The causes which produce erysipelas would seem to be obscure; the modern theory is that erysipelas is the result of some specific poison which enters the system through the exposure of a wound, but the nature of this, poison and the conditions under which it operates are not well understood. The disease was, however, a development which might fairly have been anticipated as a result of the injury, and, as in this instance, the disease developed in the wound, it was a reasonable inference of the jury that if there had been no wound there would have been no erysipelas. * * * The negligence of the defendant may, therefore, be regarded, not only as the direct cause of the wound, but of the disease, which from occult causes; not attributable to treatment, improper habits or peculiar constitutional tendencies, frequently develops from personal injiories. * * *
Nothing intervened to produce this disease other than might have been fairly anticipated as the direct, although not the necessary, result of the injury; as well might we attribute the contact of the atmosphere, or the microscopic existences therein,, as an intervening cause in such cases.” (See, also, Ginna v. Second Ave. R. R. Co., 8 Hun, 494, 501.) In these cautious terms, and with much circumspection, the court stated the principle that should be applied in cases of this character in determining the probable effects and consequences of the wrongful or negligent act for which the wrongdoer is responsible..
It may be that the peculiar circumstances of particular cases will warrant an extension of the principle of liability, but it has par
In Trapnell v. City of Red Oak Junction (76 Iowa, 744) some months after the accident a cancer was developed in plaintiff’s breast,, and experts testified that a blow or bruise might have been the cause of it, but such result would only have followed in a case where the germ of the disease existed in the system before the accident. The court remarked, tlipt while an injury by external force might have caused it to develop, it may also have developed without such cause. “ Before plaintiff can recover * * * she must establish that the relation of cause and effect existed between the fall and them (her sufferings). But, when we look into the. evidence, we find that it merely established a condition which might ■ have been caused by an injury * * * at that time, but whether such injury did occur is, under it, but a matter of surmise. The existence of a fact is not proven by evidence of a subsequent condition which is merely consistent with its existence.”
In Weber v. Third Ave. R. Co. (12 App. Div. 512; S, C., 42 N. Y. Supp. 789) it was held that the evidencé was insufficient to-warrant the jury in finding that the injury to the intestate’s knee* caused tuberculosis of the joint which, gradually extending to the lung, produced the consumption which caused his death. Rumsey, J., said: “ The question always is, was there an unbroken connection between the wrongful act and the injury—-a continuous operation 1 Did the facts constitute a continuous succession of events so-.linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the-injury ? (Railway Co. v. Kellogg, 94 U. S. 469.) It is not necessary for the plaintiff, who claims that the injury was the proximate cause of the consumption of which this man died, to show that it was the only cause. It is sufficient if she establishes that the injury, set in motion other causes which produced the disease and ’ the death, but which, in the absence of this injury, woxxld not have produced it. (Pollett v. Long, 56 N. Y. 200.) But this proof on the part of the plaintiff must be made by evidence which establishes ' the fact, and unless the evidence is sufficient to show the connection between the immediate cause of the death and the injury received the plaintiff cannot recover. * * * If the consumption was.
But, in that case, it appears that a physician was called the very ■next- day after the injury and found that the decedent had inguinal hernia, and he never again left his bed alive. (See 6 Hun, 448.)
In Hoag v. LakeShore, etc.,R. R. Co. (85 Penn. St. 297) this language was used : “ How near or remote each fact is to its next suc-ceeding fact in the concatenation of circumstances from the prime •cause to the end of the succession of facts which is immediately linked to the injury, necessarily must be determined by the jury. '* * * The jury must determine, therefore, whether the facts •constitute a succession of events, so linked together that they' become a natural whole, or whether the chain of events is so broken that they become independent, and. the final result cannot be said to be the natural and probable consequence of the primary •cause, the negligence of the defendants.”
But where the matter for determination is peculiarly one of medi
I have thus far called attention to the principles upon which the questions here presented are to be decided, with illustrations of their application to particular cases, and this brings me to a discussion of the evidence and an application of those principles to the case at bar.
The substance of the important portions of Dr. Buckley’s testimony, which it is necessary to quote, is as follows: I cannot state where she located the pain in her back; I don’t remember. Intermittent fever appeared within a few days after the injury. She gradually failed, complained of pain in the back, limbs and head. I think she received injury to the spinal column. An inflammation set up on the coverings of the spinal cord, was slow in progress and continuous, causing these pains and affecting the stomach and brain. All these symptoms were seguetee of this spinal irritation. She had an acute attack of vomiting; the stomach becomes inflamed; we don’t know that; that is our opinion; we have got to make that out by post mortem examination. The excessive vomiting was the immediate cause of her death. We do not attribute that to an inflamed condition of the stomach. It cem come from a great many causes. She had gastritis, and that would be an adequate cause for her vomiting. . Gastritis would follow the indigestion of food that was nauseous. It would all depend whether the food was agreeable-to a weak stomach. We ToelAevect these conditions of the stomach were produced by inflammation set up in the spinal cord, by the inflammation she had affecting the brain, and that made its influence felt upon the nervous system, and that indigestion of food and this attack of gastritis were brought on by this trouble. I attribute this attack of gastritis as the result of the general condition of her nervous system. Assuming that I am right in the diagnosis of the
It was largely upon evidence of this vague and indefinite character that the jurors based their individual opinions in opposition .to the testimony of the defendant’s expert witnesses, and arrived at the conclusion that, as a matter of fact, the injury was the proximate cause of death, irrespective of the operation of supervening causes or agencies, not attributable to the, defendants. .- It will be observed that the witness, Dr. Buckley, fails to state that. ,any impure matter from the abscess was i/n fact absorbed by the system-, pirn ducing a septic fever. (See Thompson v. Manhattan Ry. Co., 11 App. Div. 182.) That would be a development , from the wound itself. By intermittent fevef I understand the witness to mean “ malarial,”
I fail to discover any statement that gastritis is even a frequent •or an expected .consequence of such an injury, or that death maybe reasonably anticipated as the result, of it.
Dr. Herriman testified that the cause of intermittent fever is malarial poisoning—a poison which iss now subsisted by a germ,.
In regard to acute gastritis he says that a person’s liability to it is, to some extent, dependent upon the condition of the vitality and general health. One who has undergone a long period of illness, depressed nervous disease, accompanied by wasting, severe emaciation, is more liable to an attack than one who has not been so reduced that improper food, or food improperly prepared, put into the stomach of such a person may cause gastritis. “Acute gastritis may come on at any time, fall or not, in connection with eating ordinary food, if the stomach of the patient has been made useless for the purpose of taking care of that food by protracted disease. And the combined effect by the weakened condition, and the natural food
Dr. Angelí said that intermittent fever is considered a malarial fever, and is generally supposed to be due to a gerin which is outside of the body, floating in the atmosphere, and which is more commonly found in low places or swamp lands; that it is an infectious disease. I do not believe that a reduced physical condition makes one more susceptible to an attack of that disease; ” that acute gastritis is not a natural or probable result of the decedent’s fall; that it would be a very unusual result; that acute gastritis, sixteen months after such á fall, could not be the result of it. On cross-examination he stated : “ I should attribute a sympathetic irritation of the stomach, caused by the conditions of the knee, to the probable influence of absorption of morbid material from this open wound, but not to any spinal root inflammation. * * * Direct violence done to the person is not the cause of gastritis. * * * I should hardly regard acute gastritis as supeiwening upon a thoroughly demoralized, weak-. enefl, emaciated physical condition, the result of in juries to the spinal system or other parts of the body, or as one of the conditions which supervene on that condition from the reception of some food at the moment which the system has been too weak to take it into the stomach ; I should hardly regard that as a sufficient cause for an acute inflammation of the stomach or gastritis. * * * I should expect there had been some irritant taken into the stomach of a patient, as described, or an extension from the inflammation from a neighboring organ or from the development of an ulcer of the stomach. Putting indigestible food there, in connection with the septic condition of the patient where a running sore stopped, I should expect gastritis to be due to those circumstances, because the septic condition produces a low inflammation, if any, and not acute. * * * A fall of the character described to me would not produce any spinal injury in the nature of any inflammation.. The only injury tliat would be possible under those circumstances would be a wrench of the spinal column, but it is so protected that it is a very difficult matter to produce any disease there. Inflammation or irritation of the meninges rarely ever follows a wrench of the spinal column.”
The defendants are responsible for the injury to the knee and the direct or proximate consequences that usually or frequently may be expected to flow therefrom, but it does not seem reasonable or just to charge them with responsibility for the death of this woman, happening sixteen months thereafter, and resulting from an acute attack of vomiting as the immediate cause thereof. If the attack of gastritis was a concomitant of the intermittent fever or a consequence of it, or if the existence of the malarial poison in the system rendered her the more subject to the attack, I am unable to perceive how the defendants can be charged with the result. If the fever produced a weakening of' the stomach, increasing its sensitiveness, and indigestible food caused the vomiting, and that resulted in death, defendants ought not to be held responsible for that. The connection between the injury and the death is left in doubt and uncertainty. It is by no means clear that the gastritis was in any way a development of- the injury itself, or that death is an event that may reasonably be anticipated as a result of such an injury. Hor is it fairly evident as a fact (and not simply an opinion) that there was a spinal injury; or, if so, its particular nature or extent; and, even though spinal irritation affected the brain, nerves and stomach, it is not apparent that death would have resulted without the aid of malarial fever.
Upon the whole evidence, it is a very difficult undertaking for any one to base a reasonable conclusion and infer the fact that the
Assuming that the gastritis was a natural or probable consequence of the injury, the defendants are not responsible for the resultant death if the existence of the malarial poison in the system was also a contributory or efficient cause, without which it probably would not have been occasioned. It is just as probable, from the evidence presented, that the malarial fever was a contributing, if not a predominating, cause, operating efficiently to produce the result, as that it was not.
If the damages claimed were occasioned by two causes, for one of which the defendants are responsible, and for the other of which they are not, the plaintiff must fail if his. evidence does not show that the damage was produced by the former cause, and he must fail also if it be just as probable that they were caused by the one as by the other, as the plaintiff must make out his case by the preponderance of evidence. The jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the negligence of- defendants is not sufficient: (Searles v. Manhattan R. Co., 101 N. Y. 661; Taylor v. City of Yonkers, 105 id. 209.)
And it is not in the interest of justice to extend the field of speculation in jury .trials beyond its .present limit. (Butler v. Manhattan R. Co., 143 N. Y. 422.)
A man’s responsibility for the consequences of his negligence must end somewhere. There is a possibility of carrying an admitted principle too far. It may be extended so as to reach the reductio ad 'absurdmn so far as applies to the practical business of life. (Hoag v. Lake Shore, etc., R. R. Co., 85 Penn. St. 298.)
JSTow, it becomes a matter of surmise' or conjecture that death would probably have resulted from the stomach complaint, even though there had existed no malarial poison in her system, or that it resxxlted in spite of the poison. The existence of the poison undoubtedly weakened her system and -her power of resistance to the attack of gasti-itis, and made her the more readily to succumb-There is a reasonable probability, therefore, that the attack would not have resulted fatally bxit for the poison; in other
In- the absence of evidence establishing to a reasonable certaAnty that death was the natural and probable consequence of the injury,- or that the injury was the direct or proximate cause of it, and that the newly-acquired disease, created by1 other and entirely different causes, could liave had no material operation or effect in producing the fatal result, it seems to me it would be an unwarrantable extension of this beneficent statute, and, it may be, an injustice to these defendants to give it application to such a case. I am unable to perceive 'the legal sufficiency of the evidence for the consideration of the jury ; on the contrary, it appears to leave the plaintiff’s case in a state of considerable doubt and uncertainty, depending rather more upon conjectures, speculations and probabilities than facts or legitimate inferences, and it is altogether unsatisfactory and unconvincing. . The opinion of the jury involves a matter of medical science and concerns the causes, operation and effects of diseases incident to the human system, and its opinion is necessarily supposed to be based, to: a large extent, upon the opinion of experts in that' science, but the opinion of the jury and that of the experts hardly coincide. The jury’s conclusion is opposed to the testimony of defendant’s medical witnesses, and is hardly warranted by anything
The fact that a party is shown to have been negligent in certain particulars, resulting in injurious consequences, does not make him liable for a result produced by conditions to which his negligence did not contribute. And yet, under the instructions of the court and the refusal to instruct, the jury was at liberty to find against the evident probability that the intermittent fever was an efficient, if not a predominating, cause in rendering the gastritis a serious disease, without which death would not, probably, have ensued. Considering the long time which had elapsed since the injury, and all the “ ills that flesh is heir to,” and the vicissitudes incident to old age, clear proof should be required in such cases when it is attempted to charge one man for the death of another resulting, not as a direct effect of the blow or injury, but from subsequent supervening diseases. When it is1 claimed that a man caused or produced the death of another, let him who asserts it come forward and prove it to a reasdhable certainty ; if he cannot, from the nature and difficulty of the matter establish it, he must fail.. Obviously, death is not the usual, ordinary or frequent result of a fall of such a character. It is not an expected or anticipated consequence. I do not believe it was fairly within the contemplation of the author of this statute, nor is it justified by any principle of policy or of justice, that the liability of one person for the death of another from disease, and not as a direct consequence of the injury inflicted, should be left to
If it be objected that the principle of liability appears to be stated in terms too restrictive, it is, nevertheless, an authority against the allowance of a recovery upon such evidence as has been presented here.
Accidents of this character happen every day, yet no one expects or anticipates fatal consequences, since it is a very unusual and infrequent result.
Because the wrongdoer is liable for the impairment of health and consequent suffering, it does not follow that he should be held responsible for the fatal result of an acute attack of vomiting, consequent upon eating improper or indigestible food, concomitant with malarial poisoning. His liability must end somewhere, and it ought to stop before such a result is reached. Only direct results should be regarded, and clear proof should be required in cases of this character, where death ensues, not as a consequence of the injury, but by the operation of a supervening disease or a complication of diseases.
This is the safe principle to adopt. If the proximate cause is to be ascertained by devious ways and along uncertain paths, a recovery should not be permitted. For all the consequences that are reasonably certain to ensue, damages may be awarded in the lifetime of the party. (Currier v. Henderson, 85 Hun, 300-305.)
Damages produced by other agencies than those causing the injury, or even by agencies remotely connected with those causing the injury, ought not to be awarded, but only where the injury flows from the wrongful act as the natural concomitant or as the direct result thereof. Where speculation or conjecture has to be resorted to for the purpose of determining whether the injury results from the wrongful act or from some other, then the rule of law excludes the allowance of damages therefor. (Indianapolis, etc., R. Co. v. Birney, 71 Ill. 391; Magilton v. N. Y. C. & H. R. R. R. Co.,. 11 App. Div. 373.)
The result must be the natural and probable consequences of the
I am of the opinion that there Was no evidence in the case ón which the jury was authorized to find that the disease of which the intestate died was occasioned by or connected with the injury received from the fall. Such mere speculative possibilities, unsustained by. proof, should not. be permitted to become the basis of awarding heavy damages out of all proportion to the character * of the wrongful act or of the nature of the injury occasioned.
The judgment and order should be reversed and a new trial ordered, with costs to abide the event.
Judgment and order affirmed, with costs.