Bigelow v. Reed

51 Me. 325

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1863
• Status: Published

Opinions

The opinion of the Court was drawn up by

Kent,-J.

The case, most strongly stated for the defendant, so far as the rulings and refusals of the Judge presiding in relation to the fourth and fifth requests, are in question, is this The defendant’s son and servant was sent by him to a store in Augusta, to get a bill for ton dollars changed by the occupant. He went with a horse and sleigh, and, on arriving near the door of the store, ho alighted from the sleigh, and requested one Crommett, who was standing near, to hold his horse whilst he got the bill changed; Crommett took hold of the rein by the bit, before the son left; and the son then went into the store; that, just after this, icicles fell from the eaves of the building on to the awning and sidewalk; that the horse instantly started, and broke away from Crommett, who was still holding him by the head, close up to the bit;.that the horse then run furiously, without a driver, until he struck the plaintiff’s sleigh and person, and caused the damage tor which this suit is brought.

The fourth and fifth requested instructions were as follows : —

4. " That if they find that the horse started because' of the falling of icicles from the roof of the building, it was an inevitable accident, for which the defendant is not responsible.

5. "And if the falling of the icicles contributed to produce the injury, the defendant’s fault was not the sole cause, and the plaintiff cannot recover.”

' The only ground, on which the defendant can be held liable, is by proof that the injury was occasioned by the fault and negligence of the defendant or of his servants. It is not enough to show that the injury was caused by the defendant’s horse, running in a furious manner in a public street against the plaintiff, he being in the exercise of ordinary care. It must be also shown that the defendant had been guilty of negligence, by which the horse came into that condition of unregulated and uncontrolled and dangerous rapidity. Negligence is the essential point to be determined.

The Judge presiding gave to the jury the three first requested instructions, which were in substance; that the plaintiff must prove that the injury complained of was caused solely by fault of-the defendant; that, if any other cause contributed to produce the injury, the plaintiff cannot recover; that, if the defendant used such care in keeping and managing his team as men of ordinary prudence do, he was not ip fault.

The defendant complains because the Judge did not, as a matter of law, instruct the jury that the falling of tho icicles was an inevitable accident, for which the defendant was not responsible. This request is at best but an abstract proposition’ and disconnected from any other would seem to be immaterial. But the Court was not called upon to determine, as a matter of law, that the falling of the icicles, at that time and place, was an inevitable accident. At most it was a question of fact, if material to the issue..

But the defendant relies more particularly upon the request contained in his fifth proposition.

What the exact ruling of the Judge, on this and other points in the case was, does not appear in the exceptions. A small part, apparently, of his charge is given, but it clearly appears, that there were many instructions given which are not set out in . the bill. We are not to assume that no instructions on these points were given, but rather that those given wore unexceptionable, if the excepting party had not a right to have the precise one requested given.

Before this point, made in the fifth request, could become at all material, the plaintiff must establish such carelessness and negligence on the part of the party holding the horse, as rendered the defendant primarily liable, The defendant says, assuming that to be so, I am excused, because the falling of the icicles alarmed the horse, and caused him to run, and thus contributed to the injury. In other words — that when a man leaves his horse, carelessly and without any proper attendant, in a public street, he is not responsible, if he can show that his horse was frightened by any other person or noise, common or uncommon, for which he was not responsible.

Undoubtedly, on the question of care, it may be very important to show the nature and extent of the cause which alarmed the horse, and whether it was unusual and not or•dinarily to be expected, and all other matters, which go to show that, notwithstanding the injury, there was no want of ordinary prudence and caution. But assuming that, after all these facts are considered, the defendant is yet hold as guilty of carelessness, can he fall back upon this "falling of the icicles,” as a contributing cause of the injury?

It is a well established doctrine of the law, that, where two or more immediate causes concur in producing an injury, and the party sued is responsible' for only one of those causes, and it cannot be determined which was the efficient or most efficient cause, or whether, without both, the injury would have been done, the action cannot be maintained. But where the cause of the injury is one distinct act, separate and by itself, the law does not go beyond this, to ascertain what was the cause that led to or incited the act. The rule is — " In jure, causa próxima non remota spectator."

The law looks, to the proximate — the immediate cause, and not to one even one degree removed. It is the cause, and not the cause of the cause, that is regarded. Marble v. City of Worcester, 4 Gray, 395.

The falling of the ice was in itself no cause of injury, directly and immediately, to the plaintiff. The proximate cause was the running of the horse against the plaintiff and his property. The alarm caused by the falling of the icicles was, perhaps, the cause of that running. But that was but a remote cause of the. injury to the plaintiff, a cause of the cause. The defendant is not held responsible for the falling of the ice, but for his negligence in leaving his horse, in a condition where he might run away, if alarmed by such or any similar cause. There are many cases, where, if we do not stop at the direct or proximate cause, we may become involved " in a chain of causation, by successive links, endless.” Tisdale v. Norton, 8 Met., 388.

The difficulty, in many cases, is in determining what are proximate and what are remote causes. But, in this case, it seems clear that no immediate cause operated to produce the injury but the running of the horse unguided. If a person fires a loaded gun in a street near a horse, that discharge does no injury directly to any one, but it alarms the horse and thus puts in motion a cause, which does injury. It is not the immediate, but a secondary or‘remote cause, which the law will not regard as a part of the proximate cause, but as" one degree at least removed. If the concussion produced by the discharge of the gun had caused the icicles to fall, that discharge would have been a cause two degrees removed.

It seems to be well settled law in England that, if a man is guilty of carelessness " in leaving his team in a street, he must take the risk of any mischief that may be done.” This is the language of Tindal, C. J., in Illidge v. Goodwin, 5 Car. & P., 190. In that case, it was testified to by two witnesses, that the horse and cart of the defendant, being left alone in the street, a person passing by struck the horse. The report states, what seems somewhat novel to us, that, during the cross-examination of the second of these witnesses, the jury interposed and said they did not believe the evidence of either, and thereupon C. J. Tindal said, " supposing them to be speaking the truth, it does not amount to a defence,”, and he then added the words above quoted.

The same doctrine is recognized in Lynch v. Nurdin, 1 Ad. & E., N. R., 29.

The case of Goodman v. Taylor, 5 Car. & P., 410, is also in point. In that case, the defendant’s horse was alarmed by a "Punch & Judy” show coming by, and ran and injured the plaintiff’s horse. It appeared that the defendant’s wife stood by the head of the horse, and he ran away and almost pulled his wife down. The Judge placed the case on the point, that this was due care, but no one suggested that " Punch & Judy” were cooperating and contributing causes. The verdict was for the plaintiff, notwithstanding the intimation of the Judge on the point of due care.

We do not think that the Judge was in error in refusing to give the requested instructions.

The next request, the sixth in the series, was — "that, if they find that the plaintiff was sitting in his pung, in the travelled part of the street, for the purpose of seeing Thompson and Stevens trade horses, or waiting for Thompson to trade horses, that would not be a lawful use of the street.”

This proposition is urged as matter of law. It of course cannot bo contended that it was unlawful, per se, for the plaintiff to be present at a horse trade. And it certainly would be a severe and, to most men, a new exposition of the law, to hold that the single fact that a man who stopped in the road for his own convenience or pleasure, although he had no business of his own, " was in the unlawful use of the street.” And this without reference to the length of time he was there, or to the width of the road, or to the fact whether he interfered in any way in the use of it by others. It is perfectly well settled, that travellers are not bound to keep in motion every instant they are on the road. It is their right to stop, temporarily, for business or pleasure, provided they do not unreasonably interfere with the rights of others, who wish to use the road. This right is recognized in our statutes, in the various provisions relating to the use of highways by travellers. The requested instruction does not contain any condition, which implies even that the plaintiff was thus interfering with the rights or wishes of others; and, as before stated, in the absence of the actual rulings of the Judge on this point, we can only pass upon the proposition as stated in the request. This we think the Judge could not properly give as matter of law. Dickey v. Telegraph Co., 46 Maine, 483.

The subsequent requests, on this point, are based upon the correctness of this, and must fall with it.

If, however, we give a larger scope to the request, couched in. general terms, we think that, upon the facts reported, (all of which are made the basis of the exceptions,) it is apparent that the plaintiff was not in the unlawful use of that small portion of the street, one hundred feet wide, which he occupied, and that there was no evidence on which the requested instructions could be based. He was clearly in the lawful use of the highway.

But if he was not, so far as the State and others who might wish to. use the street are concerned, yet that fact would not authorize a trespass upon him, or any injury to his person or property, by another, party, who did not represent the State or such aggrieved persons.

It has often been determined, that, although a person is on the wrong side of the road, yet he may recover for any injury wantonly or, under the circumstances, carelessly inflicted. So if cattle are prohibited from running at large, yet if one is so found, no one has a right to maim or injure it.

A plaintiff is not precluded from recovering’ for an injury negligently done by the defendant, by the fact that he himself has been guilty of unlawful or negligent conduct, unless he might, by the exercise of ordinary care at the time, have avoided the injury. Welch v. Wesson, 6 Gray, 505; Morton v. Gloster, 46 Maine, 520.

A case illustrating this principle is Davis v. Man, 10 Mees. & Wels., 546, where the defendant negligently drove against and killed an ass in the highway, it was held that plaintiff was liable, although the ass was fettered and was wrongfully there.

We consider that the last requested instruction, which was given, covered all the ground that the defendant had a right to require, in relation to the use of ordinary care on the part of the plaintiff. It was, that if the want of ordinary care on his part contributed in the “ least degree towards the injury, he could not recover.

The 11th and 12th requests had relation entirely to matters of fact, and were properly refused.

.The defendant further excepts to a portion of the charge to the jury as reported. It is unquestionably true that it is the province of the jury to determine the question of care, under the instructions of the Court. If this part of the charge can be fairly construed as an authoritative declaration by the Judge, that certain facts would or would not establish the exercise of ordinary care, it might be exceptionable. But, upon a careful examination, we think it is manifest that no such absolute ruling was given. In this part of the charge, the Judge was presenting the evidence on the strongest ground assumed by the defendant, and reciting tSie testimony tending to show that the son was guilty of carelessness in leaving the horse with Crommett, after he had actually taken the reins, it not being denied that Crommett was a suitable person to take charge of the horse. The question then arose, whether Crommett exercised due care in holding the horse. The Judge did not rule, as matter of law, that it was necessary that he should take hold of the reins, or that it would be want of due care if he did not, under all possible circumstances. But assuming, as claimed by defendant, that the evidence established the fact, that he did thus take hold of the reins, the Judge extended the rule of due care to him in that position. He did not say that the person thus holding would be guilty of want of due care, if he let the horse go, or if he did not, at all events, keep him from breaking away. He did not undertake to define to {he jury what degree of care, in thus holding, would be sufficient. But he did say, that it was incumbent on him to guard the horse from escaping " by holding on to the reins with due diligence.” The fair interpretation of all which is, that the rule of ordinary care was applicable throughout the whole transaction, before and after the son put the horse in charge of Crommett, until he finally broke away. He left it to the jury to determine whether or not such care was used, without undertaking to declare that any one or more acts were or were not, in law, such neglect.

We discover no cause for setting aside the verdict on the motion, grounded on the allegation that it is against the weight of evidence.

Exceptions and motion overruled.

Judgment on the verdict.

Appleton, C. J., Walton and Dickerson, JJ., concurred.