Hayes Freight Lines, Inc. v. Wilson

77 N.E.2d 580, 226 Ind. 1, 1948 Ind. LEXIS 130

• Court: Indiana Supreme Court
• Decided: March 2, 1948
• Docket: No. 28,299.
• Status: Published

Opinions

O’Malley, J.

The appellee commenced this action against the appellants, Hayes Freight Lines, Inc., Loren T. Sinclair, and Carl H. Douglas. In her complaint she charged that on September 25, 1943, she and her mother were riding southward on Indiana Highway No. 57, in an automobile being driven by her husband, Carl Block. It was alleged that this automobile was proceeding from the town of Mackey toward the city of Evansville at about 8:30 P. M. and that at the same time the defendants were operating three tractor and trailer trucks north along the same road from Evansville. The complaint further alleged that the automo bile in which the plaintiff was riding met the trucks at a point near the intersection of a highway known as Base Line Road and State Highway No. 57; that the defendants were operating their trucks and trailers in a careless and negligent manner, by driving with bright and blinding lights and failing to dim the same when meeting the automobile in which appellee was riding; by operating on the left half of the highway which was provided for traffic going in the opposite direction and failing to yield one-half of the highway to the automobile in which the appellee was riding; by operating at such speed that the trucks swayed from side to side and onto the side provided for southbound traffic; and by following too close to the truck preceding and thus the trucks were spaced less than 150 feet apart as they proceeded on the highway. The complaint then charged that as a result of each of such acts of negligence the appellee was severely injured and thus suffered damage in the sum of $25,000.

The evidence most favorable to the appellee was to the effect that there was some swaying of the trucks; that the speed of the trucks was from 45 to 50 miles per hour; that the trucks were being driven on the wrong side of the road to the extent of two feet; that the lights on the trucks were blinding and that the husband of appellee signalled for dimmers but that the drivers of the trucks did not dim the truck lights; that the first truck started to pull over on the west side of the road when about 30 feet from the car in which the appellee was riding; that appellee’s husband was driving from 30 to 35 miles per hour and had both headlights burning; that the first truck sideswiped the car in which appellee was riding, the contact being made between the left side near the rear end of the truck and the left front part of the automobile; that this collision caused the car in which the appellee was riding to swerve to the left and to strike the second truck in a head on collision; and that the trucks were spaced from 30 to 50 feet apart at the time of the accident.

By stipulation it was agreed that the defendant, Hayes Freight Lines, Inc., owned the first two trucks, and that Loren T. Sinclair and Carl H. Douglas were the drivers respectively of the first and second trucks. The evidence disclosed that the third truck also belonged to the same corporation.

The evidence which was not contradicted in any way was that the driver of the first truck felt the impact of the contact between the car and his truck and that he then looked in the rear-view mirror and saw the second truck and the automobile collide; that he did not stop his truck at once because he feared that as a result of the collision the second truck might not be under control; that the second truck did not travel to exceed 12 feet after the contact with the automobile because the front wheels were knocked from under it and the front end went down; that the second truck was over on the berm to its right when it came to rest excepting the left rear wheel which was two feet over on the pavement; that the third truck stopped behind the second one and then started and went around the second one and parked close to the rear of the first truck; and that all three trucks were empty. There was evidence that the three trucks were bound for Marion, Indiana.

The giving of appellee’s instruction number 9 is the first claimed error treated in appellants’ brief. This instruction was drawn under § 47-2019, Burns’ 1940 Replacement, and in effect told the jury that if the trucks were being driven in such manner that truck No. 2 was less than 150 feet from truck No. 1, and truck No. 3 was less than 150 feet from truck No. 2, “then such driver, or drivers, were following too closely together, and were driving in violation of said statute.” It further told the jury that if they found that such violation of the statute contributed proximately to the collision and resulting injuries, their verdict should be for the plaintiff. There can be no question that this instruction stated the law. The question is whether or not it was proper to give such instruction under the facts disclosed in this case.

In Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 601, 106 N. E. 365, 368, the court had before it a cause of action for damages caused by the collapse of a building under construction. In that case, at the time that the building contemplated in the original plans was about completed the owner caused changes to be made, an additional story was added on the plans, and while the additional story was under construction the building collapsed. No evidence was given as to the cause of the collapse except that no permit was secured for the change in the plans and that the addition was made and construction thereof commenced without the consent or knowledge of the building inspector, all of which was in violation of an ordinance. The appellee in that case claimed he did not need to show the proximate cause of the collapse of the building because it was governed by the doctrine of res ipsa loquitur. The court held that a causal connection must be shown between the negligence charged and the injury complained of. In its opinion the court said:

“A violation of penal statutes constitutes negligence per se, but to make such negligence actionable it must be a proximate cause of the injury for which the action is brought. . . . The violation of a statute or ordinance raises no liability for an in jury which another may have suffered, unless the injury was in some material degree the result of such violation.”

The great weight of authority seems to be in accord with the rule announced above.

In 38 Am. Jur., on Negligence, § 166, p. 837, it is said:

“It is not material whether the negligence complained of in an action was the violation of a duty imposed by the common law or the violation of one imposed by a statute or ordinance, so far as concerns the requirement that negligence must have been the proximate cause of the plaintiff’s injury to warrant a recovery. Regardless of whether the violation of a statute or ordinance is regarded as negligence, negligence per se, or evidence of negligence, the plaintiff, to be entitled to recover, must show a causal connection between the injury received and the violation of the statutory prohibition or mandate. In other words, he must show that the violation of the statute was the proximate cause of the injury.”

In some instances the question of proximate cause or causal connection is approached by stating the rule as follows: “But for the defendant’s act the consequence in question would not have occurred.” 20 Cal. L. R. 229, 235, and authorities cited. That test is also called the “sine qua non” or “but for” rule, and is of service in making a test for a causal connection.

Unless it can be said that without the act of negligence under consideration in instruction number 9 no damage would have resulted, there is no connecting cause between the negligence and the happening that caused the damage and about which complaint is made.

In § 107, p. 251, of Harper on Torts, it is said:

“Nowhere in the law is one liable for harms not caused by his conduct or the conduct of one for whose acts and omissions he is responsible, nor indeed is he liable for all damages actually produced by his acts.”

Section 109, p. 253, of the same work uses the following language:

“Before any question of proximate or legal cause can arise, it must first appear that the defendant’s acts were the actual cause or cause in fact of the harm in question. There can be no legal or proximate cause unless there is causal connection in fact.”

See 27 Mich. L. R., p. 116.

It has been aptly said in 38 Am. Jur., § 63, p. 715, on negligence, that:

“An injury cannot be attributed to a cause unless, without it, the injury would not have occurred. Accordingly, the mere concurrence of one’s negligence with the proximate and efficient cause of a disaster will not impose liability upon him;.....”

The Restatement of the Law of Torts, Vol. 2, § 431, p. 1159, contains this enlightening language:

“The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”

The comment in that work contains this language:

“a......In order to be a legal cause of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent. Except as stated in §432 (2), this is necessary but it is not of itself sufficient. The negligence must also be a substantial factor as well as an actual factor in bringing about the plaintiff’s harm. The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there always lurks the idea of responsibility, rather them in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred...... (Our italics)

“b......It is only where the evidence permits a reasonable finding that the defendant’s conduct had some effect that the question whether the effect was substantial rather than negligible becomes important.”

The case of Boronkay v. Robinson & Carpenter (1928), 247 N. Y. 365, 368, 160 N. E. 400, 401, involved the violation of an ordinance. In that case a coal truck drew up to the curb on the left or wrong side of the street to deliver coal. After unloading, the truck started away and a four year old boy was caught by a hook which hung from the side of the truck and dragged or thrown under the truck. The wheels of the truck passed over the body of the boy and killed him. An action was instituted and at the conclusion of the trial an instruction was given to the jury to the effect that if they found that the defendant had violated the provisions of the Highway Traffic Law or the ordinances of the city of Ithaca and that such violation was the proximate cause of the injury and death, then in that event they might bring in a verdict for the plaintiff. On appeal the court said:

“Even where a statutory command is not obeyed there is no breach of duty towards those who do not come within the zone of apprehended danger, and no liability where the injury is not the result of disobedience of the statute.”

In effect the court reversed this case because there was no connection between the claimed negligence in violating the statute and the death of the child, and for that reason the instruction was improper.

Another case that should be examined is that of Geisen v. Luce (1932), 185 Minn. 479, 242 N. W. 8. The facts in this case show that a man about 70 years of age, while driving his automobile on a paved highway, had engine trouble and the car stopped and could not be started. The shoulders of the road were not firm and he permitted his car to stand on the pavement while he went for help. Minnesota had a statute, 1 Mason, (1927), §2720-24 (a) (c), that prohibited an owner or driver from parking or permitting a car to stand on the highway. The only charge of negligence was that the defendant permitted his car to stand on the paved road in violation of the statute. The accident happened when a car attempted to go around the stalled car at a time when a car going in the opposite direction was too close to permit the parties to avoid a collision. The court on appeal held the accident would or could have happened if the defendant’s car had been moving slowly. The court in determining that case, on page 485 of 185 Minn., page 11 of 242 N. W., used the following words:

“Even though the standing of a car on the highway may be unlawful, yet the wrongful standing cannot be the proximate cause of an accident unless it results from the standing. While such standing may be the occasion or condition, it is not in a legal sense a contributing proximate cause of the accident.....The ‘standing’ of the Ferris car did not set Luce’s negligence in operation nor concur therein.”

The cause was reversed as to Ferris, the owner of the stalled car, and the lower court was directed to enter judgment in his favor.

The Supreme Court of Pennsylvania passed on the question involved in the case of Berry v. Sugar Notch Borough (1899), 191 Pa. 345, 43 A. 240. The Borough of Sugar Notch granted to the street railway company the privilege of operating within its limits on condition that the cars would not run beyond a specified speed. A motorman operating his car at a speed greater than that permitted by the ordinance was injured by a falling tree during a storm. On appeal it was held that the fact that the car arrived at the point where the tree fell at the precise time that the wind blew it down was the merest chance and a thing no foresight could have predicted, and constituted no causal connection between the happening and the injury. Therefore, the Borough was not benefited by the motorman’s violation of the statute.

In Isenhour v. McGranighan (1941), 178 Va. 365, 17 S. E. 2d 383, it was held that a truck spacing statute was applicable to a situation somewhat similar to the one now before us. However, in that case the court reasoned that whether or not the proximity of the rear truck to the front truck, in violation of a statute, was a contributing cause of the damage suffered by the plaintiff, was, under the facts, a question for the jury. While the court there disposed of the questions of causal connection and whether or not the statute covered such occurrences, it will be noted that the question of causal connection was not discussed. In fact the court treated the legal question presented as if it were one of fact for determination by the jury. However, when the defendant objects to the giving of an instuction on the ground that there is no evidence of causal connection, the court must then determine as a matter of law the question thus presented and in the absence of any evidence showing a causal connection there is no question to be determined as a fact by the jury.

In the instant case, even though the statute is applicable, the negligence of the driver of the second truck could not in any way enlarge or restrict the negligence of the driver of the first truck unless he was the agent of the latter or the two drivers were engaged in a joint enterprise. It is true that the driver of the first truck would probably be held liable for the damage inflicted if he in fact was negligent and such negligence contributed to the injuries, but how can one say that the negligence of the second driver in violating the statute violated any duty owing to the appellee, unless such violation was a proximate cause of the injuries and damage. The claimed violation merely placed his truck in a position to impede the travel of the swerving automobile which was out of control after being struck by the first truck. As was said in Berry v. Sugar Notch Borough, supra, 191 Pa. at page 348, 43 A. at page 240, “That his speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted.” If he had been closer the matter might not have happened.

In the case under consideration we have the location of the second truck less than 150 feet behind the first truck and the third truck less than 150 feet behind the second truck. The instruction permitted the jury to find against the first driver if it found that the second and third drivers, or either of them, had violated the mandate of the act. There is no evidence of a joint enterprise or that one driver was responsible to or for either or both of the other drivers. There was no evidence that the closeness of the trucks caused any of the drivers to hestitate on stopping or swerving to avoid injury. The first driver said he did not stop as soon as he could because he had observed the collision of the automobile with the second truck and that he then feared that the truck might be out of control. That was evidence of hesitancy in stopping after the collision. No one claims any harm resulted because the first driver did not stop without hesitation after the accident. In fact the driver was using caution and proper care in his manner of stopping.

The violation of a statute was held to be the proximate cause where a mill owner failed to cause a set of gears to be covered in accordance with the provisions of the statute. There the men necessarily worked around and over the gears in performing their services. King v. Inland Steel Co. (1912), 177 Ind. 201, 207, 208, 96 N. E. 337, 339, 97 N. E. 529.

In the above case this court, while considering the matter of causal connection and proximate cause, said:

“A test of proximate cause is to be found in the probability of injurious consequences fairly to be anticipated from the omission of duty or the negligent act.....

“The negligence of appellee was present at the very beginning of the series of events which led up to appellant’s injury, and it continued along with all of them and caused his injury. There was no time when the casual connection of appellee’s breach of duty with appellant’s injury was broken. It was the first, the immediate and efficient cause. This is proximate cause.”

In Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 424, 73 N. E. 899, 903, it is said:

“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?”

In the absence of allegations showing a causal connection between the alleged negligence in the spacing of each of the trucks and the injuries sustained, and in the absence of evidence of such causal connection, the court committed reversible error in submitting the question of the spacing of the trucks to the jury. Lower Vein Coal Co. v. Moore (1923), 80 Ind. App. 53, 137 N. E. 887; Old Folks etc., Home v. Roberts (1925), 83 Ind. App. 546, 149 N. E. 188. See Swanson v. Slagal, Administratrix (1937), 212 Ind. 394, 8 N. E. 2d 993; 21 Ind. L. J. 453. If an instruction is given which is not pertinent to the issues and applicable to the evidence, on appeal it will constitute prejudicial error unless the record clearly shows the giving of the instruction was harmless. Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369, 91 N. E. 238; Hoesel v. Cain; Kahler v. Cain (1944), 222 Ind. 330, 340, 53 N. E. 2d 165, 169, 53 N. E. 2d 769. See Probst, Receiver v. Spitznagle (1939), 215 Ind. 402, 19 N. E. 2d 263.

If there was no causal connection between the violation of the statute and the injuries sustained by the appellee, the violation of the statute could not be a proximate cause of such injuries and the jury should not have been informed that they could consider the evidence of such violation for any purpose.

For error in giving instruction number nine the judgment of the lower court is reversed with instructions to sustain appellants’ motion for a new trial.

Emmert, C. J., dissenting with opinion. Gilkison, J., joins in dissent.

Note.—Reported in 77 N. E. 2d 580.