22 Haw. 66 | Haw. | 1914
Lead Opinion
OPINION OF THE COURT BY
This is a writ of error to review a judgment of nonsuit entered in the circuit court of the first circuit, — the sole assignment of error being the granting of the motion for nonsuit and entry of judgment thereon. The record sent up in response to the writ shows that George E. Ward, the plaintiff in error, hereinafter called the plaintiff, brought an action against the Inter-Island Steam Navigation. Company, Limited, the defendant in error, hereinafter called the defendant, to recover damages in the sum of $50,000 for personal injuries sustained by him on July 8, 1912, as the result of the alleged negligence of the defendant while, the relation of master and servant existed between them.
On and prior to the date of the accident which occasioned the injury to the plaintiff complained of in his action, the defendant, as a part of its business, maintained and operated in Ho
At the time of the accident the plaintiff had been in the employment of the defendant about eight years as machinist in its shops and as foreman at the coal conveyor, occasionally going to sea as engineer on one of the defendant’s boats.
While the plaintiff was engaged at the conveyor as foreman his chief work was on the ships superintending the discharging of coal, but his duties also required him to go upon the conveyor, see that everything was in order, and to attend to the general working thereof.
In the view we take of the case it will not be necessary to enter into a detailed statement or analysis of the evidence. Suffice it to say, that the evidence adduced by the plaintiff tended to show that at the time of the accident and for a period of about three weeks prior thereto, the steel cable then in use on the coal conveyor was roughened by usage, small strands of wire about 1-16 of an inch in length projecting; that this roughness of the cable gave it a tendency when in motion’ to climb on the pulleys and hence a greater tendency to come off; that by reason of its condition it did come off the pulleys; that it was in a dangerous and unsafe condition; that it was unfit for the use and purpose required of it; that it had been in use about ten months; that the life of a cable such as the one in question was about eight months; that the defendant had notice, as well as
We will assume for the purposes of this opinion that the evidence adduced by the plaintiff showed that the defendant was guilty of negligence in furnishing a defective cable for use on its coal conveyor.
At the close of the plaintiff’s case the defendant moved for a nonsuit on the following grounds: (1) That the plaintiff had failed to show that the defendant was guilty of any negligence; (2) that the proximate cause of the accident was the plaintiff’s own act; (3) that the plaintiff was guilty of contributory negligence; (4) that the plaintiff assumed all the risk of the employment which resulted in the accident.
While the court below was of the opinion that the evidence adduced tended to show that the cable was defective, it held, however, that there was no evidence tending to show that the slipping of the cable from the pulleys at the time the plaintiff was endeavoring to restore it to its proper position was the result of the defective condition of the cable, and, therefore, granted the motion on the first ground. As to the second, third and fourth grounds of the motion, the court held, and we think cor
The defendant contends that the'defective condition of the cable was not the proximate cause of the plaintiff’s injury, because, after it came off the pulleys and was at rest, its defective condition ceased to operate or have anything to do with the events which followed, admitting, however, that when it came off the pulleys while in motion, if it had then struck the plaintiff and injured him, it might properly have been claimed that the defective condition was the proximate cause of the injury.
The plaintiff, of course, contends that the negligence of the defendant in continuing the use of the cable in its defective condition was the primary and proximate cause of the accident resulting in his injury, and that the defendant, therefore, is liable. Upon the evidence as disclosed by the record now before us this question as to the liability of the defendant should have been submitted to the jury. 21 Am. & Eng. Ency. Law (2d ed.), 508; 2 Labatt, Master and Servant, §805.
Actionable negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person would not have done. Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 416; Baltimore & P. R. Co. v. Jones, 95 U. S. 439, 441; 1 Thompson on Negligence, §1.
If the defendant failed to furnish the plaintiff with a cable
In Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 474, Mr. Justice Strong said; “The true rule is that what is the proximate cause of any injury is ordinarily a question for a jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances' of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market-place. 2 Bl. Rep. 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation ? 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? It is generally held, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is
It is fundamental, of course, that in an action founded upon the alleged negligence of a defendant, the negligence must be the proximate cause'of the injury alleged; and it is also true, that where there is an “intermediate cause disconnected from the primary fault,” such as an intervening human agency, “self-operating,” which comes between the act of negligence and the injury, the negligence alleged is not the proximate cause of the injury, unless a reasonable and prudent person should have foreseen that his negligent act would set the intervening cause or human agency in motion. The crucial question, the pivotal fact, in the case at bar is, therefore, whether the
In Chicago R. I. & P. R. Co. v. Moore, 43 L. R. A. (N. S.) 701, 706, a case analogous to the case at bar, the plaintiff was employed by the company as a fireman on one of its locomotive engines, which was sent out in a defective condition, and while out on the road got out of order. An examination disclosed that the “eccentric” was broken. It was the duty of the plaintiff. to make emergency repairs while on the road. While engaged in making the repairs, the “straps,” which fastened the “eccentric” to the axle, broke and injured the plaintiff. , The court said (p. 706) : “But in this case the repairs, under the circumstances, were made necessary by the negligence of the company, and enhanced the risk of the injury. The intervention of the act of the plaintiff between the negligence of the company and the injury should have been anticipated. When the engine broke, it became necessary to repair. The plaintiff could not go off and leave it. It should have been foreseen that he would attempt to remedy the defect and thereby incur the risk of injury. The defendant is charged with knowledge of the defect, and knowing the defect it must have known that
The case at bar is clearly distinguishable from those cases wherein the injury was the result of an independent intervening cause. Pass Ry. Co. v. Trich, 117 Pa. 390; McFarlane v. The Town of Sullivan, 99 Wis. 361; 29 Cyc. 499, 500; Elliott v. Allegheny County Light Co., 204 Pa. 568; Cole v. German Sav. & L. Soc., 63 L. R. A. 416.
The questions presented by the evidence in the case at bar, as disclosed by the record before us, and which should have been submitted to the jury for determination, are, in effect, whether it was the duty of the defendant to have foreseen that the cable, by reason of its defective condition, would come off the pulleys; whether the plaintiff would thereupon attempt to restore it to its proper position; and whether the injury sustained by the plaintiff was the natural and probable consequence ■of the defendant’s negligence. In other Avords, whether or not the intervening cause — the human agency — was set in motion by the defendant’s negligence.
The plaintiff also claims that his injuries were caused by the lack of a guard rail and platform at the head of the conveyor —the place where the accident occurred. _
It appears from the record that the plaintiff was fully aware •of the condition of the conveyor when he accepted employment thereon and at all times during his employment, and that he had never made any complaint concerning it. There is nothing in the evidence tending to show that he continued in his Avork relying upon any promise to change the condition of the conveyor in the respect mentioned. "Whatever the risks were, we
The plaintiff having made out a prima facie case was entitled to have it submitted to the jury.
The judgment of nonsuit is reversed, a new trial is granted and the cause remanded with directions to deny the motion for nonsuit.
Dissenting Opinion
DISSENTING OPINION OP
While concurring in what is said in the foregoing opinion on the subject of the assumption by plaintiff of the risks incident to the lack of a guard rail and a platform at the head of the coal conveyor, I respectfully dissent from the view that the question of proximate cause should have been submitted to the'jury and from the conclusion that a nonsuit was incorrectly ordered.
There is no doubt that what is the proximate cause of an injury is ordinarily a question for a jury; but when the facts are all undisputed and the inferences necessary to sustain the plaintiff’s case are not legally deducible from those facts, the question is solely one of law for the court. Teis v. Smuggler Mining Co., 158 Fed. 260, 269; Jennings v. Davis, 187 Fed. 703, 713; Clark v. Wallace, 51 Colo. 437, 439. In the case at bar the question was, in my opinion, one of law for the court.
There was, it is true, evidence tending to show that the cable in its worn and frayed condition had a “tendency to climb” on the pulleys and thus to leave them and that the defendant was therefore guilty of negligence in continuing the use of the cable; and if in leaving the pulleys for this reason the cable had caus.ed- injury to an employee without any fault of the latter, the negligence would clearly have been the proximate cause of the injury ánd the defendant •would have been liable.
The proximate cause of an injury may be distant in time and in place, it may operate through successive instruments, but to be such it must appear that the injury was the natural and probable consequence of the negligence or wrongful act and that it ought to have been foreseen in the light of the attending circumstances. R. R. v. Kellogg, 94 U. S. 469, 474. “A natural consequence of an act • is the consequence which ordinarily follows it — the result which may be reasonably' anticipated from it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it.” Cole v. German Savings & Loan Soc., 124 Fed. 113, 115. In a general sense every act or event leads up to and is the cause of some subsequent act or event and, inversely, every act or event is in some degree influenced by and is the consequence of some earlier act or event. But in that broad sense causes and consequences are unknown in the law of negligence. Certainty in the law, justice and expediency require the imposition of
It seems to me that the jury would not be justified in declaring that plaintiff’s fall was the natural and probable consequence of the continued use of the defective cable, in other words, in charging the defendant with the duty of foreseeing the fall, any more than in holding that it should have foreseen that plaintiff in hastening to the spot where the cable was off the pulleys would stumble and fall to the dock below or that the man in charge of the engine in attempting to stop the machinery and thus bring the cable to rest would have his hand caught in the machinery, requiring amputation of a part of the arm.
The plaintiff, who was a skilled engineer and machinist and
Much reliance is placed by plaintiff upon tbe case of R. R. v. Moore, 43 L. R. A., N. S., 701, decided by the supreme court of Oklahoma. Possibly that case can be distinguished in its facts from that at bar. Tbe engineer, whose main duty was to operate tbe engine on tbe road, was said by tbe court to be under a duty to repair “only in cases of emergencies such as tbe company by reasonable care could not provide against”; and tbe court in its opinion (pp. 705, 706) expressly made tbe reservation that, “neither could an employee regularly engaged in repairing tbe machinery of tbe company recover for an injury received as tbe one complained of here, however negligently tbe necessity for repairs might bave been caused, because it was bis regular business to repair and tbe danger in bis employment was exactly thej same, whether tbe repairs were made necessary by negligence or accident”. In tbe case at bar tbe undisputed evidence is that tbe plaintiff was regularly engaged in repairing tbe machinery of tbe conveyor, just as be was regularly engaged in superintending its operation. It was bis regular business to repair, whether the repairs were made necessary by accidents resulting from negligence or by causes not involving negligence; and tbe danger in bis employment was exactly tbe same in tbe one class of repairs as in tbe other. Tbe case at bar would seem to fall, not within tbe principle of tbe actual decision in tbe Moore case, but within tbe principle of tbe reservation. If, however, tbe cases are not thus distinguishable and if tbe court in tbe Moore case goes to tbe extent of bolding that upon facts
In my opinion the plaintiff failed to show that the defendant was guilty of any negligence which could have been properly found by the jury to have been the proximate cause of the injuries complained of and the motion for a nonsuit was properly granted.
