198 Mich. 428 | Mich. | 1917
On August 13, 1914, three horses of the plaintiff’s were pastured in a field adjoining the electric line of the defendant company running between Owosso and Lansing. They were grazing in the field together with other stock of the plaintiff’s when a rainstorm came up during which there was more or less thunder and lightning, and when the storm had ended the horses in question were found lying against a wire fence separating the field from the defendant’s right of way. All were dead and were smoking, as well as a tree to which the fence was attached at this point, and continued to do so until a line crew arrived and cut a wire, one end of which was fastened.in some way to the wire fence about 40 rods from where the horses lay, and the other end
It is the plaintiff’s theory of the case, and it was upon this theory that the case was submitted to the jury, that the defendant was negligent in allowing the pull-off wire to fall and remain there for such a length of time; that it should have been discovered in the exercise of ordinary care; and that the defendant had abundant time to remove it after the time in which it should have been discovered had passed. The evidence discloses that the wire had been in this position for a period of about three months prior to the accident. It also appears under the undisputed testimony
The assignments of error practically raise one question. It is the claim of the defendant that there was no actionable negligence on the part of the defendant in not removing the wire running from the pole to the fence, because the accident that really occurred could not have been anticipated, qs the proximate cause was the act of God, that the undisputed facts show the fallen pull-off wire was harmless as far as defendant’s current was concerned under ordinary and usual conditions, and that it was only the extraordinary accident that occurred during the electrical storm that rendered the wire a dangerous medium. In other words, it is the contention that the proximate cause of the death of the colts was the severe electrical storm, and not the failure to repair the pull-off wire.
The trial judge submitted to the jury these propositions: Whether or not under the circumstances of this case it was a negligent act on the part of the defendant to allow the pull-off wire to remain in the. condition that it was; whether or not such a reasonable time had elapsed as to bring notice to the defendant; and did the defendant, after it should have discovered it, have time in which to remedy it. We are of the opinion, that these questions were properly for the jury if it can be said that the alleged negligent act on the part of the defendant was the proximate cause
“Counsel contend that, if the glass fell by means of its being dislodged by the wind, the negligence of the defendant was not the proximate cause of the injury, and they complain of a refusal to instruct the jury that in such event the plaintiff should not be allowed to recover. The negligence complained of is the maintenance of a window in such a condition that the glass was liable to fall out, not necessarily from its own weight, but under the natural conditions and strain to which it was likely to be subjected. It might not be negligent to leave a broken pane, if assurance could be given that it would be undisturbed by wind or by use. But wind is an everyday occurrence. It is a condition, not necessarily a cause, and one which should be taken into consideration before determining that a broken glass is not likely to fall. The wind may have been a concurring circumstance, but it cannot be said to have been the proximate cause, and the broken glass the remote cause.”
Again, in Morrison v. City of Ironwood, 189 Mich. 117 (155 N. W. 477), the plaintiff received her injuries by stepping into a ditch in, the public highway which had become filled with snow, and the question
‘ “Viewing the testimony as to the construction of the ditch in the light most favorable to the plaintiff’s claim, and taking into consideration the weather conditions prevalent in that part of the State at the time of year the accident occurred, we are of the opinion that the fall of snow was not such an independent, unforeseen cause which intervened between the claimed negligent act of the city in constructing the ditch as it did and the time of the injury that it can be' said to be the proximate cause of the accident, and that the city should have anticipated the possibility of the fall of snow, and that some injury might therefore result from having the ditch unprotected and uncovered.”
Here we have another action of the elements, and we do not think it unreasonable to say that in this climate the defendant should be held to the knowledge that electrical storms are very likely to occur and do the very damage that was done in this case. We are therefore of the opinion that the electrical storm cannot be said to be such an independent, unforeseen cause as to take it from under the rule laid down in the definition given in Stoll v. Laubengayer, 174 Mich. 701, (140 N. W. 532), where proximate cause is defined as:
“A proximate cause, in the law of negligence, is such a cause as operates to produce particular consequences without the intervention of any independent unforeseen cause without which the injuries would not have occurred. 21 Am. & Eng. Enc. Law (2d Ed.), p. 485.”
It follows also that the failure to repair the pull-oft wire can reasonably be said to be the immediate, efficient, and direct cause preceding the injury because the defendant, who was guilty of this first act of omis
We have carefully examined the charge of the court, and are satisfied that the issues involved were submitted with proper instructions, and that there is sufficient evidence of the alleged negligence of the defendant to support the verdict of the jury.
We find no error, and therefore affirm the judgment.