Guenther v. Metropolitan Railroad

23 App. D.C. 493, 1904 U.S. App. LEXIS 5279

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 3, 1904
• Docket: No. 1383
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. The conditions under which a case may be withdrawn from the jury are well established. See Adams v. Washington & G. R. Co. 9 App. D. C. 26, 31, and cases there cited.

Without their restatement it is sufficient to say that this judgment ought to be reversed unless it is plain from the evidence in the record — so plain that all reasonable minds must fairly reach the same conclusion — that the plaintiff has failed to make out a case sufficient in law to support a verdict in his favor.

Three issues of mixed law and fact are involved, and plaintiff’s failure on any one of these to make out a case requiring its submission to the determination of the jury, with appropriate instructions respecting the law applicable thereto, would justify the direction to find a verdict for the defendant.

Those issues are: (1) Was the defendant guilty of negligence ?

(2) Were the injuries of the plaintiff’s intestate caused or contributed to by bis own negligence ?

(3) Were tbe injuries received the proximate cause of his; death?

2. Undoubtedly, the first issue ought to have been submitted to the jury. The evidence shows, without contradiction, that the cars, though crowded, were stopped to take on passengers at the regular stopping place while plaintiff’s intestate and some-others were there waiting to take passage. Just as he grasped either the upright wooden bar on one side of the step, or the-iron handle on the other — it is immaterial which — and was in the act of raising his foot to the step the bell rang and the car-started. He was not thrown down but ivas dragged across the street, because he retained his hold and was assisted by one or-more passengers who stood upon the platform of the moving car. Plaintiff’s intestate and one of the witnesses stood Avliilefrom three to five crowded cars passed. When this train came witness suggested that he should wait with her for another, bufr he said he would be late. Several ladies got on the car at the same place and a witness standing on the platform says that, intestate stepped back for them to get on first* He Avas a large,. heaA^y man and the witness Avho had been waiting with him was watching him because she feared he would be left. This, witness says that the conductor was at or near the front of the-rear car, and that he did not see the intestate because he did not look back.

It is Avell settled that when a car has been stopped to let passengers get off it is the duty of the conductor to see that each one is; safely off before giving the signal to start. He is bound to look and should not be engaged in anything that would prevent this, observation. Harmon v. Washington & G. R. Co. 7 Mackey, 255, 147 U. S. 571, 37 L. ed. 284, 13 Sup. Ct. Rep. 557; Metropolitan R. Co. v. Jones, 1 App. D. C. 200, 207. For equally as strong a reason, when a car has been stopped to take on passengers, it is the duty of the conductor to see that all are safely-on before giving the signal to start. It is his duty to watch both ends of the car, and he has no right to assume that all persons are-equally strong and active, and that the last one must be safely on, because in his opinion sufficient time has been given.

That the cars may be so crowded as to make it difficult or impossible for him to make the necessary observation while within the car is no excuse. That fact would seem, if anything, to increase the burden of his duty because of the consequent impediment to rapid egress and ingress. If, then, he started the car whilst intestate had hold of either handle and was attempting to enter, he was guilty of negligence.

3. Assuming, as we must from the evidence before recited, that the intestate had grasped the bar or hand rail in an attempt ‘to get on the car before it was put in motion, it was for the jury “to say whether the injuries which he received were the result of his own want of care in not releasing his grasp in time to prevent being thrown to the pavement or dragged along as he was. Whether he had sufficient time for the exercise of judgment as to the proper course to pursue, or whether he might reasonably have concluded, if he had sufficient time to think and act, that it was as safe to hold on as to turn loose, were questions eminently proper for the determination of the jury. Whether he exercised the care reasonably to be expected of an ordinary person at the time is to be determined from all the surrounding circumstances, among which are the conditions of emergency under which he was called upon to act. Washington & G. R. Co. v. Hickey, 5 App. D. C. 436, 471, 166 U. S. 521, 41 L. ed. 1101, 17 Sup. Ct. Rep. 661.

4. The serious difficulty in this case arises under the third question, Was it error to refuse to submit to the determination of the jury whether, under all of the evidence, the death of intestate was caused by the wrongful act, neglect, or default of the defendant as required by the statute conferring a right of action in such case upon his personal representatives ?

In other words, was it so plain that the death on January 15, 1899, was not proximately caused by the injuries received November 30, 1898, but resulted from an independent, intervening cause, that the court w’as justified in withdrawing the question from the jury ?

It cannot be successfully, and we do not understand it to be seriously, maintained that the evidence offered by the plaintiff in chief was manifestly insufficient to warrant the inference that the injuries were the proximate cause of death.

Consequently, when the plaintiff rested the defendant did not more to withdraw the case from the jury, but undertook the burden of proving that death was the consequence of an intervening, independent cause without which it would not have occurred.

This intervening agency, which its testimony tended to show v/as the predominant and efficient cause of the death, was preexisting heart disease.

It seems to be settled by the Supreme Court of the United States that a case may be withdrawn from the jury, not only where the plaintiff’s evidence is plainly insufficient to support a verdict, but also where the whole evidence, including that introduced by defendant as well as plaintiff and offering no substantial dispute on material points, is of such conclusive character that the court in the exercise of a sound judicial discretion would be compelled to set aside a verdict returned in opposition to it. Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469,. 472, 35 L. ed. 213, 215, 11 Sup. Ct. Rep. 569; Randall v. Baltimore & O. R. Co. 109 U. S. 478, 482, 27 L. ed. 1003, 1005, 3 Sup. Ct. Rep. 322; Union P. R. Co. v. McDonald, 152 U. S. 262, 284, 38 L. ed. 434, 443, 14 Sup. Ct. Rep. 619.

It remains, therefore, to consider whether, under appropriate application thereto of the maxim, Causa próxima non remota speciatur, the evidence tending to show that heart disease was the direct, proximate cause of death, is of the required character to sustain the direction of a verdict responsive to it. In considering this vexed question of proximate and remote cause, iu a case where damages had been recovered for the destruction of' plaintiff’s mill and lumber by fire communicated thereto from a distant elevator that had been set on fire through the negligence of the defendant whilst an unusually strong wind was blowing in their direction, it was said by Mr. Justice Strong, speaking for t-he Supreme Court of the United States:

“The true rule is that what is the proximate cause of an injury is ordinarily a question for the 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. * * * 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 1he injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural aad probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. * * * We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always he whether there was any intermediate cause disconnected from the primary fault, and self operating, which produced the injury. Here lies the difficulty. But the inquiry must be answered in accordance with common understanding. In a succession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. * * * In the nature of things there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence or-are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.” Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 474, 476, 24 L. ed. 256, 258, 259.

The conclusion that heart disease was undoubtedly the proximate cause of intestate’s death rests upon the evidence of the attending physician and the opinion of an expert founded thereon.

The witness had retired from practice some years before and removed to Indiana. The expert, who knew him, testifying on the trial in June, 1903, said that he had been out of practice for ten years or more. However, as the witness had attended upon intestate between four and five years before, this must be taken to mean that he had not given up all practice at that time. The physician’s entire evidence is contained in his answers given to written interrogatories propounded by both parties, and his deposition was taken more than two years after the patient’s death.

The witness apparently testified from a general recollection, without the aid of records or memoranda of his visits, his observation of conditions, and treatment. This may account for his statement showing but a slight examination of the patient, and his failure to remember the existence of the bruises and discolorations upon his body and limbs that were testified to by his wife and son. He seems to have attached no importance to the injuries which his patient had received, although he remembered having been told of the accident, and was not able to say whether the pain complained of in his arm was due to the strain or to rheumatism. He had no recollection of the patient’s spitting blood shortly after the accident, of which others had testified, and the first hemorrhage remembered occurred within a few days before the death. He was positive in the statement that intestate’s heart was diseased more than a year before the accident — disease due to valvular deficiency of the heart caused by rheumatism, and which gradually increased. Hpon this knowledge and the facts stated as to the effects of the injuries received, lie expressed the opinion that the death was the result of the disease of the heart. In connection with the contradiction of the witness respecting the injuries of the intestate, and their immediate effect, there was other evidence tending to show his general good health for several years before the accident and •on the day of its occurrence.

He was sixty-seven years old, had never availed himself of the annual vacation of thirty days allowed by law to all department clerks, and, as shown by the record kept by the chief of his division, he was absent under report of sickness for three days in 1898, prior to November 30, namely, March 10, September -6, and October 3.

Intestate’s wife and son both testified to his general health .and strength before November 30. There was direct evidence also that he was badly bruised on that day, came home suffering great pain, and was confined to the house, most of the time in his bed, until death occurred. The testimony as to the spitting of blood a few days after his injuries were received has been before referred to.

Upon a statement of the facts as presented by the physician’s deposition, the expert, as noted in the statement of Ms evidence, -expressed the positive opinion that the death was caused by the pre-existing heart disease. On cross-examination based on statements made by plaintiff’s witnesses, he adhered to this opinion. He said that a man might live for years with heart disease gradually progressing; that he might keep at active work until at last the heart becomes weak as shown by dropsy, and final hemorrhage. He further said that admitting this diseased condition at the time of the accident, with injuries as testified to by plaintiff’s witnesses, those injuries “could have precipitated, and probably precipitated the result.”

Forced by conditions of the case to pass upon the conclusive force of this evidence, as matter of law, we are not to be understood as expressing any opinion as regards the weight that ought to be given to it by a jury properly charged with its determination.

Granting that death came finally from hemorrhage superinduced by the diseased condition of the intestate’s heart, and the strong probability that heart disease, incipient before the receipt of the injuries, was the proximate cause of death, it is sufficient, for all the purposes of this appeal, to say that in our judgment the evidence is not so far undisputed and of such conclusive character as to permit no other conclusion than that a pre-existing diseased condition of the heart was the certain, predominant, and efficient cause. In other words, were this an appeal from a judgment rendered on behalf of the plaintiff we would not regard it as our duty to set the verdict aside.

We regard this case as clearly distinguishable from those upon which the appellant most strongly relies, and the most important of which will be briefly considered:

(1) Scheffer v. Washington City, V. M. & G. S. R. Co. 105 U. S. 249, 26 L. ed. 1070, was a case where the intestate, hurt December 7, 1874, some time thereafter became insane from his injuries and committed suicide on August 8, 1875. A demurrer to the declaration was sustained and the judgment was affirmed on the ground that suicide resulting from insanity was not the natural and probable consequence of the defendant’s act of negligence.

(2) Daniels v. New York, N. H. & H. R. Co. 183 Mass. 393, 62 L. R. A. 751, 67 N. E. 424. In that case also the intestate died by his own hand, two months after the receipt of injury. The court in deciding against the plaintiff said: “We are of opinion that the liability of a defendant for a death by suicide exists only when the death is the result of an uncontrollable impulse, or is accomplished in delirium or frenzy caused by the collision, and without conscious volition to produce death, having knowledge of the physical nature and consequences of the act.”

(3) Seifter v. Brooklyn Heights R. Co. 169 N. Y. 254, 62 N. E. 349. There the intestate sustained a fracture, and died nearly five months thereafter from what was claimed to be septic pneumonia. The judgment against the plaintiff was affirmed, three of seven judges dissenting. In the majority opinion it was said that the first link in the chain was to establish infection at the point of fracture, and that there was no evidence thereof.

In the foregoing cases death was due solely to an independent, intervening cause; that is to say, a cause arising after the injury sustained through the defendant’s negligence, but yet not reasonably and naturally traceable thereto. In this case, as in some others to which attention will be called, the alleged proximate cause existed, to some extent at least, before the act of negligence occurred; and the right of the plaintiff, therefore, does not depend upon proof showing that this new cause was the reasonable and natural consequence of the injury as a primal cause, but upon whether it has been made to appear that death was the reasonable, natural consequence of the injury, notwithstanding it would inevitably have resulted, sooner or later, from the preexisting disease. “The law wil not go farther back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause of causes beyond seeking the efficient predominant cause, which, following it no farther than those consequences that might have been anticipated as not unlikely to result from it, has produced the effect. An injury which might naturally produce death in a person of a certain temperament or state of health is the cause of his death, if he dies by reason of it, even if he would not have died if his temperament or previous health had been different; and this is so, as well when death comes through the medium of a disease directly induced by the injury as when the injury immediately interrupts the vital processes.” The foregoing is extracted from the opinion of the court in a case involving liability under a policy of accident insurance. The insured died of peritonitis, which he had had in the same part previous to the accidental fall, and it was proved that effects had been produced which rendered him liable to a recurrence of it. Plaintiff’s evidence tended to show that the recurrence of the disease was induced by the fall. A judgment for the plaintiff was affirmed. Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 351, 353, 17 L. R. A. 753, 30 N. E. 1013. It is true, it was said in the charge in that case, that if the insured was then suffering from the disease wbicb was aggravated and made fatal by tbe fall, he could not recover, for the accident would not then be the proximate cause of death “in the sense of the policy.” “But if,” it was added, “owing to existing lesions caused by that disease, but not having the disease at the time, the same hind of malady, tbat is, peritonitis, was started up, tbe company are to be answerable, although if there bad been a normal state of things tbe fall would not have occasioned such a result.”

Whatever the rule may be in an action depending upon tbe construction of a contract of insurance against accident, under certain limitations and exceptions, as to liability where tbe death was from disease, “aggravated and made fatal” by accident, we do not think tbat it can apply in an action of tort for the benefit of a wrongdoer. Louisville & N. R. Co. v. Jones, 83 Ala. 376, 382, 3 So. 902. In tbat case, in which the defense to an action for tbe death of a passenger was tbat pneumonia was the proximate cause, it was said: “Even if Mrs. Jones had pneumonia or incipient pneumonia, at tbe time she received tbe injury, and it could be known tbat she would ultimately die of tbat disease, this would not necessarily and as a matter of law relieve tbe railroad of all responsibility. If tbe injury was caused by tbe negligence of tbe railroad company, under tbe rules declared above, and if it contributed to and hastened her death, then the corporation would not be guiltless.” See also Thompson v. Louisville & N. R. Co. 91 Ala. 496, 11 L. R. A. 146, 8 So. 406; Jeffersonville, M. & I. R. Co. v. Riley, 39 Ind. 568, 582; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 350, 49 Am. Rep. 168; Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 174, 45 Am. Rep. 30, 15 N. W. 65; Baltimore City Pass. R. Co. v. Kemp, 61 Md. 74, 81.

In tbe case last cited the plaintiff sued for injuries sustained through tbe negligence of tbe defendant while being carried as a passenger. There was evidence tending to show tbat cancer resulted from a blow received on her breast. Tbe question was whether this could be considered by the jury as a probable, natural result of the injury. In affirming the judgment for tbe plaintiff it was said by Chief Judge Alvey (now Chief Justice of this court) that:

“It is the common observation of all that the effects of personal physical injuries depend much upon the peculiar conditions and tendencies of the persons injured, and what may produce but slight and comparatively uninjurious consequences in one case may produce consequences of the most serious and distressing character in another. And this being so, a wrongdoer is not permitted to relieve himself from responsibility for the consequences of his act by showing that the injury would have been of less severity if it had been inflicted upon any one else of a large majority of the human family. Hence the general rule is that in actions of tort like the present, the wrongdoer is liable for all the direct injury resulting from his wrongful act, and that too although the extent or special nature of the resulting injury could not, with certainty, have been foreseen or contemplated as the probable result of the act done. . . . That the female plaintiff may have had a tendency or predisposition to cancer can afford no proper ground of objection. She, in common with all other people of the community, had a right to travel or be carried in the cars of the defendants, and she had a right to enjoy that privilege without incurring the peril of receiving a wrongful injury that might result in inflaming and developing the dormant germs of a fatal disease. It is not for the defendants to say that because they did not, or could not, in fact, anticipate such a result of their negligent act, they must therefore be exonerated from liability for such consequences as ensued. They must be taken to know and to contemplate all the natural and proximate consequences, not only that certainly would, but that probably might flow from their wrongful act. The defendants must be supposed to know that it was the right of all classes and conditions of people, whether diseased or otherwise, to be carried in their cars, and it must also be supposed that they knew that a personal injury inflicted upon any one with predisposition or tendency to cancer might, and probably would, develop the disease.”

Assuming that before the date of the accident the intestate had heart disease so far developed that by the established natural law of that disease it would gradually have brought on a fatal hemorrhage at some indefinite future period, he had, nevertheless, the right to offer himself as a passenger on defendant’s cars at a proper place and time, and to demand the exercise of due care whilst in act of availing himself of his right.

If, then, by the direct agency of a wrongful act, the inevitable, final result of his disease was brought about, or necessarily hastened, or, in the language of defendant’s expert witness, “precipitated,” the wrongdoer who set the intermediate agency in motion can not escape responsibility. In such a case the wrongful act, intervening between the incipient disease and its ultimate result, becomes, in tbe' contemplation of law, the proximate cause.

5. Two other assignments of error relate to the admission of certain evidence offered by the defendant through its claim agent and another to show that no reports of the accident had been made to the defendant by its employees, and that it had not been able to hear of any one who knew anything about the accident, etc., and to the exclusion of the evidence of the expert witness offered by the plaintiff to rebut the opinion expressed by the defendant’s expert.

The evidence of the two agents was calculated to do little or no harm to the plaintiff and little good to the defendant; but they ought not to have been permitted to testify over the objection of the plaintiff.

For reasons given in part in Robinson v. Parker, 11 App. D. C. 132, we incline to the view that the testimony offered by the plaintiff in rebuttal ought to have been admitted.

For the error in directing the verdict for the defendant the judgment will be reversed with costs, and the cause remanded with direction to grant a new trial; and it is so ordered.

Reversed.