80 Kan. 10 | Kan. | 1909
The opinion of the court was delivered by
It is claimed by the defendant that the ■ district court erred in refusing to sustain the demurrer to the petition, in overruling the demurrer to
The plaintiff was seriously injured. The amount of the verdict is reasonable, if the defendant is liable for anything. The railroad. company denies being negligent in any particular, and insists that, even if it were negligent, as alleged in the petition, such negligence was too remote to create a liability for the injury received by the plaintiff.
Defendant further contends that the proximate cause of such injury was the slippery condition of the ground, for which it was not responsible. In the view we have taken, this is the paramount question in the case. It was said in the case of Light Co. v. Koepp, 64 Kan. 735:
“It is too well known to need illustration that negligence or other unintentional wrong will not furnish the foundation for a cause of action for damages unless it was the proximate cause of the injury sustained.”’ (Page 736.)
In the case of Railway Co. v. Columbia, 65 Kan. 390, it was said:
“In cases of this character where two distinct, successive causes, unrelated in operation', to some extent contribute to an injury, it is settled that where there is. an intervening and direct cause, a prior and remote-cause can not be made the basis for recovery of damages, if such prior cause did no more than furnish the-condition, or give rise to the occasion, by which the in-jury was made possible. It seems to be sound in principle and well settled by authority that where it is admitted or found that two distinct, successive causes,, unrelated in their operation, conj oin to produce a given injury, one of them must be the proximate, and the-other the remote, cause of the injury, and the court, in passing on the facts as found or admitted to exist, must*20 regard the proximate as the efficient and consequent cause, and disregard the remote cause.” (Page 399.)
(See, also, Gas Co. v. Dabney, 79 Kan. 820.)
In the case of Herr v. City of Lebanon, Appellant, 149 Pa. St. 222, it was held:
“If. two distinct causes are successive and unrelated in their operation, one of them must be the proximate and the other the remote cause. In such case, the law regards the proximate as the efficient and responsible cause, and disregards the remote.” (Syllabus.)
In Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 63 Fed. 400, it was said:
“The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” (Page 258.)
Applying these principles to the facts of this case it will not be difficult to determine what was the direct and proximate cause of plaintiff’s injuries. The injury was received after the hand-car was safely off the track and the road clear for the passage of the train. After the wheels of the hand-car were off the rails it could not be managed by the plaintiff and his helper, because of the icy and slippery condition of the ground. Except for this condition the car could have been easily managed and no injury would have been sustained. This, in substance, is alleged ih the petition, and is clearly shown by the evidence. If the necessity to derail the hand-car were a part of the business of the railroad company, and constituted a link in the chain of causation which led up to the accident, it was a remote and minor factor, and in no sense the direct and efficient cause which produced the injury. The defendant was not responsible for this condition of the ground, and had no control over it.. Its duty to clear the track for the approaching train was fully and safely accomplished. These icy and slippery conditions were
It seems difficult, in view of these facts, to avoid the conclusion that the slippery condition of the ground was the proximate cause of the injury. In this view the defendant would escape liability, perhaps, even if it were negligent in its prior handling of the handcars. We are inclined to the conclusion, however, that no negligence in this respect has been shown. Handcars and trains of all kinds must of necessity be operated upon the main line of every railroad at the same time, and negligence is not committed thereby if due care is taken to avoid collisions. In this case the coming passenger-train was discovered in ample time to remove the hand-cars from the track, and this was done before the train reached the point where the derailment occurred. Under ordinary circumstances the hand-car would have been under the control of the plaintiff, the injury would not have occurred, and the passing of the train would have been forgotten like any other incident of daily occurrence in the operation of a railroad. The condition of the ground was as well known to the plaintiff and the other-members of the crew as to the foreman. It was equally open to the observation of all. The plaintiff and Hill were not directed to remove the car alone; they expected assistance, but did not deem it necessary to wait, and voluntarily undertook to remove the car themselves.
In any view we do not think the plaintiff has either pleaded or proved a cause of action against the defendant. The demurrer to the petition and to the evidence should both have been sustained.
The facts are not so that we can order a judgment for the defendant, and therefore the judgment of the district court is reversed with direction to proceed in accordance with the views herein expressed.
