WATSON, Justice.
Plaintiff, J. C. Gilbert, sued the city of Roswell and the New Mexico Construction Company for a fire loss upon his residence, claiming that it was occasioned by low pressure in the city’s water mains, insufficient to enable firemen to extinguish the flames. Trial to the court resulted in a judgment of $3,700 against defendant construction company, and it has appealed.
Appellant was in pursuit of a paving contract with the city. Though informed of the location of the water mains, it so operated its power shovel, in excavating, as to break a main. This occurred at 10 o’clock a. m. Appellant immediately notified the city, which undertook the necessary repairs. With ordinary diligence the break could have been repaired in two hours. It remained unrepaired until about 6 o’clock p. m.
At about 5:30 p. m. appellee’s house caught fire. When discovered, if water pressure had been normal, a garden hose would have been sufficient to extinguish the flames. The firemen, with their equipment, were on the spot within two to five minutes after discovery of the fire. If the pressure had been normal it would have extinguished the fire without appreciable damage.
To facilitate the repairs, the city water superintendent directed the city engineer to reduce pressure to twenty pounds, the normal being sixty. The firemen, finding the pressure insufficient, the operator of the pumps was requested for more. He declined to increase it until so ordered by ihe water superintendent. It was increased later, and the fire extinguished, after damage of $3,700 to appellee’s house, shrubbery, trees, lawn, and flowers.
The court below found the foregoing facts, and held that appellant’s negligence was the proximate cause of appellee’s injury. It held that the city’s negligence was a contributing cause, but that the city was not legally liable to appellee.
The first of appellant’s contentions which we need notice is that its breaking of the main was not negligent. The argument is not impressive, and is based on some facts which the court refused to find. The theory is that the contract must have contemplated the use of machinery such as was used, and that, in excavating with such machinery, pipes near the required grade are likely to be broken. We find in this no justification for saying, as matter of law, that thus breaking a pipe, the location of which is known, is not negligence.
It is next contended that the breaking of the pipe was not, in any sense, a cause of the damage. It is claimed that the repairs were complete before the fire alarm was given; that the broken main had ceased to affect the situation; and that the low water pressure was attributable solely to the failure of the city to restore it immediately upon completion of repairs, or at least when the alarm was given. This depends on nice calculation as to the time of events. It attacks the findings that the fire occurred at about 5:30 o’clock, and that the repairs were completed at about 6. We doubt if the evidence brought to our attention would warrant disturbing these findings.
It is apparent that the repairs were completed and the fire discovered at about the same time. An attempt to reduce events to an exact and accurately timed sequence would no doubt fail, and does not seem warranted. We think that a few minutes’ delay by the city in restoring pressure after appellant had made it necessary to reduce it, would not enable us to say, as matter of law, that the primary negligence had spent its force.
It is also contended that, even with the break unrepaired, sufficient pressure could have been furnished, at slight. damage, to have enabled the firemen to accomplish their task. The trial court refused to find that, notwithstanding the break, “the water could have been turned on at the * * * plant when the * * * telephone communication was received from the scene of the fire * * * and sufficient pressure could have been forced to plaintiff’s residence to have extinguished the fire.” Appellant points to evidence which might have required the court to find that the mere existence of the break would not prevent putting the hydrant pressure to fifty pounds. It is not shown how long, the break existing, it would require to advance pressure from twenty pounds to fifty. After the fire broke out, time was important. Assuming that there is merit in the legal contention, we find no error in refusing the proposed finding.
Appellant’s most important and interesting contention is that the breaking of the water main was not the proximate cause of the fire loss. The first aspect of its proposition is that such cause, regardless of any intervening negligence of the city, is hut remote.
We find no contention between counsel as to the general rule of proximate cause. So far as definition goes, all seem content with the round statement found in Lutz v. Atlantic & Pacific Ry. Co., 6 N. M. 496, 30 P. 912, 16 L. R. A. 819, and later in Maestas v. Alameda Cattle Co., 36 N. M. 323, 14 P.(2d) 733, 735: “The ‘cause which, in natural and continued sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which that result would not have occurred.’ ”
A general survey of appellant’s argument discloses these grounds for asserting the remoteness of this cause: The fire itself was the proximate cause of appellant’s loss; appellee had no right to this municipal fire ex-tinguishment service capable of supporting an action for interference with it; appellant could not reasonably have anticipated that its act would produce the injury so long subsequently.
The first contention we deem too well settled against appellant to require more than citation of some of the decisions. In the leading case the court answered it thus: “The law regards practical distinctions, rather than those which are merely theoretical; and practically, when a man cuts off the hose through which firemen are throwing a stream upon a burning building, and thereupon the building is consumed for want of water to extinguish it, his act is to be regarded as the direct and efficient cause of the injury.” Metallic Compression Casting Co. v. Fitchburg R. R. Co., 109 Mass. 277, 12 Am. Rep. 689.
Many later decisions have taken this view, and it seems to be denied nowhere now. Kiernan v. Metropolitan Construction Co., 170 Mass. 678, 49 N. E. 648; Clark v. G. T. W. R. Co., 149 Mich. 400, 112 N. W. 1121, 12 Ann. Cas. 559; Little Rock T. & E. Co. v. McCaskill, 75 Ark. 133, 86 S. W. 997, 70 L. R. A. 680, 112 Am. St. Rep. 48; Hurley v. M., K. & T. Ry. Co., 170 Mo. App. 235, 156 S. W. 57; Houren v. C., M. & St. P. Ry. Co., 236 Ill. 620, 86 N. E. 611, 20 L. R. A. (N. S.) 1110, 127 Am. St. Rep. 309; C., C., C. & St. L. Ry. Co. v. Tauer, 176 Ind. 621, 96 N. E. 758, 39 L. R. A. (N. S.) 20; Hanlon Dry Dock & S. Co. v. So. Pac. Co., 92 Cal. App. 230, 268 P. 385 ; Erickson v. G. N. Ry. Co., 117 Minn. 348, 135 N. W. 1129, 39 L. R. A. (N. S.) 237, Ann. Cas. 1913D, 763; Luedeke v. C. & N. W. Ry. Co., 120 Neb. 124, 231 N. W. 695; Phenix Ins. Co. v. N. Y. C. & H. R. R. Co., 122 App. Div. 113, 106 N. Y. S. 696; C. & F. Lbr. Co. v. D. & R. G. R. Co., 17 Colo. App. 275, 68 P. 670.
The second contention merits fuller discussion’. It is well established that a municipality’s fire extinguishment service is afforded as a governmental function, not as matter of legal right, and that the city is not liable to the householder for refusal or failure to render it effectually or at all. So, it is claimed, there is no privity — right on the part of appellee and duty on the part of appellant — to support this action.
Notwithstanding the city’s immunity, which all recognize, the line of decisions just cited declares the liability of the third party who has wrongfully prevented enjoyment of the service. The Supreme Judicial Court of Massachusetts said: “While it is true * * * that there was no obligation upon the city to extinguish the fire, it does not follow that the plaintiff was not deprived of anything to which she had a legal right if the defendant obstructed the firemen in getting water from the hydrant. She had a legal right to have firemen get the water if they chose to do so from a supply provided especially for that purpose.” Kiernan v. Metropolitan Construction Co., supra.
Not all of the cases cited mention, but all necessarily involve, the particular question now under discussion.
Appellant contends, however, that in all of these cases the service was actually being availed of at the time of the wrongful act, or that the need for it had arisen at least. And this we shall presently accept as a fair statement. In the ease at bar, appellee’s need arose eight hours later. Conclusive effect is claimed for this distinction.
We have not before cited Concordia Fire Ins. Co. v. Simmons Co., 167 Wis. 541, 168 N. W. 199, 200; for in that case the wrongful act, which put the city’s intake pipe out of commission, preceded by one week the householder’s need of the service. That decision affords firm support for the judgment in this case. Appellant contends that it stands alone and should not be followed. More important, we have here long stood divided as to its significance and effect. It thus requires careful analysis.
We think the effect of the decision plain. It upheld the complaint. That complaint disclosed, among its other facts, that, when the negligent act was done, the plaintiff was not using the service and did not need it until a week later.
We think the ground of the decision equally plain. Meeting the very contention here made, that plaintiff’s lack of right to this service was fatal to an action for interference with it, the court said: “ * * * So long as the householder or inhabitant of the city is in the position to receive, and the municipality is ready and willing to continue such service, the person who interferes with such relationship between the municipality and its inhabitant, and thereby causes injury to such householder or inhabitant, must respond for such damages as may be directly traceable to his interference as a proximate cause. It is not for a person who has interfered with such existing right or privilege to say that it is a mere gratuity on the part of the municipality, or that the municipality cannot be compelled to continue such service' or be held' responsible for failure to do so. So long as the municipality is ready and willing to continue, and the householder or resident to accept, the benefit of such a water system service, the unlawful interruption thereof by a third person and consequent damage is a wrong for which the law affords a remedy.”
That is but to say that readiness and willingness of the city to serve and of the householder to be served are the equivalent of actual present service, when testing the character of the householder’s right. To put it a little differently: As between the householder and the city, there is lack of full-fledged legal right; but as between the householder and the interfere!-, there is a right in the former raising a duty of care by the latter ; and this right rests upon readiness and willingness to serve.
But when we propose to follow this decision some of its theory is urged against us. It is pointed out that the Wisconsin Supreme Court considered that it was taking “one step further” than the courts of the country had previously taken. That evidently sprang from a realization that up to that time the courts had dealt with cases of present use or need only. The court put its own construction upon the theory of previous decisions thus: “But while such service is being actually rendered by a municipality as while a fire is going on and an immediate benefit is being received by a householder there can be no question but that, as to all third persons, there is then a substantial right and interest in the householder to such service which carries with it the further right to be protected against its invasion by third persons. At the moment such a right comes into existence there springs up at the same time a corresponding duty on the part of thiril persons not to unlawfully interfere therewith. For a breach of such duty by third persons there is a corresponding liability. ■This is recognized in many cases. Kiernan v. Metropolitan C. Co., 170 Mass. 378, 49 N. E. 648; Metallic C. C. Co. v. Fitchburg R. Co., 109 Mass. 277, 12 Am. Rep. 689; Clark v. G. T. W. R. Co., 149 Mich. 400, 112 N. W. 1121, 12 Ann. Cas. 559, 562.”
The important fact is that the Wisconsin court mentioned this theory but to explode it. Yet, on this appeal, the exploded theory has assumed greater importance than the decision.
We have sought in vain in the three decisions cited in the Concordia Case, in all the decisions here cited, and in many others, for anything fairly to warrant such an appraisal of them. Nowhere do we find even the germ of the thought that the breaking out of a fire changes the service from a gratuity to a right.
A dictum of Mr. Justice White, dissenting in Mott v. Hudson River R. Co., 24 N. Y. Super. Ct. (1 Rob.) 585, 594, is relied on. That decision, for the last time in this country (1863), held the householder’s loss too remote from the cause (severing a length of hose in use) to admit of liability. The dissenting justice remarked: “Cutting or destroying fire hose, provided for use by a community, when no fire existed, and the hose was not in actual use at the time of the cutting, would not give a member of that community, whose house should afterwards be burned down, a right of action for damages caused by the destruction of his house, although it might be ever so probable or clear that if the hose had not been cut, its use would have enabled (he owner of the house to extinguish the fire and save his property. The damages would in that case be too remote ; that is, they would be so remote that other acts or negligences intervening might be chargeable, to some extent, with the disaster ; and courts will not speculate in such cases, in order to determine whether any, or how much, of the damage is due to a particular act complained of.”
This, of course, is a slender reed of authority. It is evident, moreover, that neither the majority nor the dissenting justice had in mind proximate cause as affected by the plaintiff’s lack of legal right to the service. Purther, as applied to a mere length of hose, the distinction is not without force. When hanging in the hose house, a serious result is hardly to be anticipated from its destruction. When actually conveying water to a burning building it is an immediately essential part of the service.
Up to the time of the Concordia Case, the decisions fall into two classes; severing hose, and blocking the firemen with the equipment from access to the fire. Neither of these wrongs has any lasting result. It is only the householder in present need of service who suffers. A more lasting impairment of the service, as in the Concordia Case, introduces a new factor, it is true. Its bearing, however, is not on the relation of householder’s right and third party’s duty. It affects that other element of proximate cause, whether the result was reasonably to have been anticipated.
In following the Concordia decision, we do not admit that we are taking or that the Wisconsin court took a “step further” in principle. We merely make another application of principles long established.
Influenced by “practical distinctions, rather than those which are' merely theoretical,” the courts have come with great unanimity to uphold this kind of liability. It no doubt considerably broadened the field óf proximate cause. It put quite a burden of care upon the negligent public in the interest of the innocently suffering public. Practical considerations and policy have thus perhaps triumphed over complete harmony of law.
However that may be, unless we would repudiate this result of vast judicial effort, it is now too late to entertain this objection of remote cause. On authority, we think it must be held that wrongfully interfering with the city’s ability to serve invades a substantial right.
The taxpayer would deny that the service is a gratuity. The underwriter would affirm that it has substantial value as prospective security against fire loss. The city’s nonliability is the same before and after the fire. The practical view is that the householder’s right and the corresponding duty of care are fixed, not varying, factors. The idea that from the fire there “comes into existence” a new right and “springs np” a new duty, is fiction. If not pure fiction, it is a theory too technical to control these practical decisions. It was not through such fine reasoning that the courts arrived where we now find them in this class of cases. The right and the corresponding duty exist all the time. What the fire brings into existence is a cause of action. Until that event, there is of course no compensable injury.
Outside this particular field, cases may be found which lend support to appellant’s contention. One such is Byrd v. English, 117 Ga. 191, 43 S. E. 419, 64 L. R. A. 94. It is strongly relied upon by appellant. It sustained a demurrer to a complaint based on negligence of a building contractor who, in excavating, broke wires of an electric company carrying power for the operation of plaintiff’s printing plant. The court was unable to say, as matter of law, that the injury to plaintiff’s business was not reasonably to have been anticipated. Yet it held that there was no liability except to the owner of the wires. Human affairs are so complicated, it was argued, that the law cannot undertake to compensate all who may be indirectly affected by an unlawful act. The court cited a few cases, particularly Kahl v. Love, 37 N. J. Law, 5, which, in effect, limit the tort-feasor’s liability to the owner of the property injured, or to those to whom the former is immediately obligated by contract, or to whom he is otherwise under special duty.
The Byrd-English Case is freely criticized by the L. R. A. annotator, who cites numerous earlier decisions contrary to it in principle, some being in the line of decisions above cited.
Whatever privity of right and corresponding duty general principle may require to make a ease of proximate cause, we consider it well settled that there is • sufficient privity between the householder who has suffered preventable fire loss and him who wrongfully deprived him of the preventive service.
The view has found lodgment here .that the case at bar is distinguishable from the Concordia Case, in that the city of Roswell was not ready and willing to serve appellee in his time of need. This we cannot admit. Unreadiness was due to' appellant’s act, and it cannot take advantage of its own wrong. Unwillingness there never was. It is claimed because of the finding that repairs could have been effected in two hours if there had been reasonable diligence. A finding is not to be construed as an abstraction, wholly apart from the evidence. Appellant’s own picture of the city’s efforts at repair shows them to have been instituted with reasonable promptness and to have been continuous. Misdirected as they may have been much of the time, their purpose was to restore service. They disclose willingness and negative unwillingness.
It is also thought that there is something in appellant’s character as the city’s instrument in its paving work — not as an independent contractor, it is said — to prevent its accountability for this negligence. This being a matter not urged by counsel, we refer to it with some hesitancy.
Well aware that the city’s immunity extends to the servants or agencies through whom it may afford its fire extinguishment service, we know of no precedent and recognize no principle for invoking that immunity in favor ■ of this paving company. The servant’s liability precedes, it is not ordinarily dependent' on, the master’s liability. If, on the principle of respondeat superior, this was the city’s act of negligence, appellant is not aided. It was none the less its own act. When the water company fails to serve, the law, largely on grounds of public policy, regards the failure as the city’s failure only. No such grounds exist when it is the paving company that interferes to prevent service. As we view it, appellant is here as much a third person or stranger as was the Simmons -Company, defendant in the Concordia Case.
We find nothing illogical in the thought that this wrongful act, considered as the act of the city, is irremediable, while, considered as the act of its servant, if a servant, it is actionable. If there be disharmony in these results, it is a confusion to which authority plainly commits us. The matter seems simple. As between the city and the householder, the law recognizes no right and affords no legal remedy. As between the interferer and the householder, the law does recognize a right and gives redress. In reaching these results, “practical distinctions rather than those which are merely technical” have been considered, and public policy has had an important influence.
Leaving now this most interesting phase of the case, we pass to the third of the. above-stated grounds on which it is urged that the negligent act was but a remote cause of the loss; that appellant could not reasonably have anticipated such a result.
Here is stated a recognized test of proximate cause. Maestas v. Alameda Cattle Co., supra. Undoubtedly it is a proper inquiry whether appellant anticipated this result or whether it may reasonably be, said that it should have been anticipated.
However, the question is one of fact; becoming one of law only when undisputed evidence discloses a case as to which reasonable minds could not differ. Cooley on Torts (4th Ed.) § 50. Thompson on Negligence, §§ 49, 161; C., C., C. & St. L. Ry. Co. v. Tauer, supra; Hurley v. M., K. & T. Ry. Co., supra; Nall v. Taylor, 247 Ill. 580, 93 N. E. 359. And the question is not whether this particular loss, but whether loss of this kind, was or should have been anticipated. Houren v. C. M. & St. P. Ry. Co., C., C., C. & St. L. Ry. Co. v. Tauer, Hanlon Drydock & S. Co. v. Southern Pacific Co., supra; Thompson on Negligence, § 59.
Appellant expresses great concern for the consequences of sustaining this judgment. If appellant may be charged with a reasonable anticipation that the injurious results of its act would obtain for eight hours, why not for a week? Where .is the line to be drawn? The answer must be that the line will be drawn where reasonable minds cannot differ.
The case furnishes a nice question of fact. Considering that full repair could have been made and service restored in two houx's, ought appellant have anticipated impairment of sendee for eight hours? What degree of diligence on the part of the city might it reasonably rely upon? The fact finder has spoken. We could avoid what he has said only by ourselves saying that no reasonable mind could have reached that conclusion. This we think cannot be said properly in this case.
The other aspect of appellant’s contention on proximate cause is that, even if its act could proximately have caused the injury, it did not in this case, because the chain of causation was broken by the intervening negligent delay of the city in making the repairs or in restoring pressure after completion of the repairs.
It is no doubt true that the injury to appellee might have been avoided by greater diligence or better directed effort on the part of the city. That does not in. our opinion interrupt the natural and continued sequence of the oi’iginal force. The city’s negligence was passive merely. Cf. Citizens’ Tel. Co. v. Prickett, 189 Ind. 141, 125 N. E. 193. It was not independent. The necessity for it to act at all arose wholly from appellant’s act. In reason, one who sets a hannful force in motion should not be heard to defend against liability by the claim that another than the injured party might have prevented the injurious result by an active and timely intervention. The negligence of physician, surgeon, or nurse may intervene to aggravate an injux-y or to make it fatal. That will not sever the chain of casualty leading to him who made the treatment necessary. Thompson on Negligence, § 66. See, also, Early v. Burt, 134 Kan. 445, 7 P.(2d) 95. And if it could be questioned whether the city’s negligence, being passive, is a cause set in motion by the original wrongdoing (Id. §§ 52, 53), the intervening cause may as readily be given an active character by conceiving it the act of the city in reducing the water pressure.
Appellant senses this weakness in its position, but thinks it cured by the legal fact that the city is not under liability to respond for its negligence. It is argued that the duty and necessity to repair the break was on the city, appellant having no control of the matter; that hence the direct cause of the injury was the manner of repair; and that if, after faulty repair, the break had recurred under pressure, appellant would have been under no liability.
We do not see how appellant can thus rid itself, as matter of law, of the primary liability. Having broken the main, damaged the city’s property, and endangei-ed appellee’s, we cannot say that appellant has no concern or duty or liability with respect to the time or manner of restoring the main to service. If the city were not under a legal exemption, its negligence would be a concurring cause, we think. We do not consider that its nonliability changes the situation.
Ætna Insurance Co. v. Boon, 95 U. S. 117, 130, 24 L. Ed. 395, is a fruitful source in this connection. Mr. Justice Strong there says:
“The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.”
And he quotes thus from a leading ease (Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256):
“The inquiry must always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.”
Appellant cites Newman v. Steuernagel, 132 Cal. App. 417, 22 P.(2d) 780; Cole v. German Savings & Loan Soc. (C. C. A.) 124 F. 113, 63 L. R. A. 416; Curran v. Chicago & N. I. R. Co., 289 Ill. 111, 124 N. E. 330; New England Fuel & Transportation Co. v. City of Boston (D. C.) 257 F. 778; Steenbock v. Omaha Country Club, 110 Neb. 794, 195 N. W. 117; Lewis v. Flint & P. M. Ry. Co., 54 Mich. 55, 19 N. W. 744, 52 Am. Rep. 790. None of these decisions deny, some of them expressly admit, the principle of ¿Etna Insurance Co. v. Boon, supra. All of them involve an efficient intervening force, independent of the original.
Before leaving proximate cause, another matter should perhaps be mentioned. The findings disclose that the city’s system of mains was equipped with shut-off valves, and that on the occasion in question they were found useless from corrosion, due to the city’s negligence. Except for this, we take it, the effects of the break would have been so localized that in other places, including the situs of the fire, water pressure would have been maintained.
Appellant makes no use of these facts in argument other than as partly explanatory of the delay in making repairs and of the necessity of reducing pressure throughout the city. We readily perceive, however, that these facts, in connection with others not shown, might have been of importance in the case, at least in the trial court. If it had been shown, either that appellant knew of the shut-off equipment, or that such equipment was in universal or general use, it could more forcefully have urged that the injury occurring eight hours later, and in a different part of the city, was not reasonably to have been anticipated.
In cases of this sort it has often been urged that the quantum of injury is so speculative as not to support damages. That contention is expressly met in Houren v. Chicago, M. & St. P. Ry. Co.; Hurley v. Missouri, K. & T. Ry. Co.; Hanlon Drydock & Shipbuilding Co. v. So. Pac. Co., supra, and in Luedeke v. Chicago & N. W. Ry. Co., 120 Neb. 124, 231 N. W. 695. The inherent difficulty has of course been surmounted in all eases where damages have been awarded for acts preventing or interfering with the extinguishment of fires. We cannot doubt that there was sufficient evidence in this case to warrant the court in undertaking to estimate what part of the total fire damage would have been avoided but for appellant’s negligence. Nor can we say that the evidence fails to support his finding that, except for lack of pressure, the damage would have 'been negligible.
We gather that the damages allowed are liberal. Appellant contends that they are at least $500 too largo. This is based upon the claim that some allowance should have been made for obsolescence. Appellant did not fortify itself on this point by requested findings ; so we consider it not incumbent upon us to pursue it.
The judgment will be affirmed, and the cause remanded. It is so ordered.
SADDER, C. J., and JOSEPH L. DAIDEX, District Judge, concur.