Home Oil & Gas Co. v. Dabney

101 P. 488, 79 Kan. 820, 1909 Kan. LEXIS 288

• Court: Supreme Court of Kansas
• Decided: April 10, 1909
• Docket: No. 15,937
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

The main contention is that the demurrer should have been sustained. The reasons presented in the brief in support of this claim are far from convincing. We have not, for instance, been able to discover in what way contributory negligence, assumption of risk or the doctrine of “the last clear chance,” which are urged at length and supplemented with numerous citations, can be said to have any application to the facts. We have no hesitation, however, in concluding that the demurrer should have been sustained.

There were no special findings, but it is apparent that the act of the defendants in shooting the well in the evening was not the proximate cause of the fire. There is nothing in the evidence to warrant the assumption that the same result might not have occurred if the shooting had been postponed to the following day, nor is there any evidence that it is negligence to shoot a well in the evening. Again, notwithstanding the absence of any findings, it is obvious that there must have been some intervening, direct cause for the explosion; the escaping gas must necessarily have come in contact with fire. The evidence does not disclose, nor does the petition allege, what was the direct cause. The explosion may have been brought about by a stroke of lightning, or by the merest accident, or by the intentional or careless act of some person for whose conduct the defendants were in no way responsible. Whatever the direct cause may have been, it was obviously unrelated in its operation to the act of the defendants in shooting the well in the evening, or in failing to cap the well and pipe the gas to a tank, or to their failure to have some person on the ground watching the premises.

The case therefore falls within the doctrine of Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399. In that case a locomotive fireman lost his life by the derailment of his engine. The railway company had permitted several heavy grain-doors to be piled and to remain on a raised platform near the track at one of its railroad stations. During a storm these doors were blown off, fell upon the track, derailed the engine, and caused the death. There was a general verdict for the plaintiff, and in addition the jury made special findings, among others, that if there had been no wind-storm the accident complained of would not have occurred. There was also a finding that the severe gale or wind-storm that carried the doors from the pile on the platform to the track was not the proximate cause of the accident, but that the proximate cause was the negligence of the railway company in piling the grain-doors on the platform in an exposed condition. In the opinion the well-settled rule that where two distinct, successive causes, wholly unrelated in operation, contribute to an accident one must be the proximate and the other the remote cause was recognized and applied. The following quotation from the syllabus states the law:

“A prior and remote cause can not be made the basis of an action for the recovery of damages if such remote cause did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened, between such prior or remote cause and the injury, a distinct, successive, unrelated and efficient cause of the injury.”

It was said in the opinion:

“While one is responsible for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, if his fault happened to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the extraordinary result.” (Page 398.)

•In the case at bar, if we concede that the defendants were negligent in causing the well to be shot in the evening—although there is not the slightest evidence to warrant such a conclusion, or that they were negligent in failing to keep some one on watch or guard during the night—although it is not perceived in what way a person in charge could have prevented the explosion, or that the defendants were negligent in failing to cap the well and connect it with a tank to receive the oil and gas, still, unless it can be said that the explosion and fire were the natural and probable consequences of the failure of the defendants to do these things, they can not be held responsible. The most that can be said is that, if any or all the acts of the defendants taken together constituted negligence, the negligence must be regarded as the prior or remote cause; and if these prior causes “did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible” (Railway Co. v. Columbia, supra) they can furnish no basis for the recovéry of damages. As was held in Sowles v. Moore, 65 Vt. 322, 21 L. R. A. 723, “it is not enough that a defendant has been negligent, unless that negligence has contributed to the injury of the plaintiff.” (Syllabus.) In Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105, it was said:

“Negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that an injury would likely result therefrom; not that the specific injury would result, but an injury of some character.” (Page 519.)

(To the same effect are: Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 402; Light Co. v. Koepp, 64 Kan. 735, 68 Pac. 608; Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 27 L. R. A. 583, 63 Fed. 400.)

In volume 1 of Thompson’s Commentaries on the Law of Negligence, section 59, the rule is stated as follows: “It is sufficient that the injuries are the natural, though not the necessary and inevitable, result of the negligent fault.”

In Stone v. Boston & Albany Railroad, 171 Mass. 536, 41 L. R. A. 794,. it was held that the negligence in storing oil on a station platform is not the proximate cause of damage by fire which is started by the careless dropping of a match by a person who comes to the platform to deliver goods and who is not a servant or employee or guest of the railroad company. On the other hand, there are numerous cases where it is apparent that it was the duty of the original wrong-doer to anticipate and provide against the intervention of an independent agency, because in the ordinary course of events such intervention would occur. In Lane v. Atlantic Works, 111 Mass. 136, a verdict for the plaintiff was allowed to stand because the jury found that the meddling of young boys with a loaded truck left in the public street was an act which the defendants should have apprehended and provided against. In the opinion the court said:

“In actions of this description the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.” (Page 139.)

In the present case there is an absence of any proof as to the immediate cause of the explosion, and we are therefore left to the natural inferences. Was the explosion the natural consequence of the defendants’ negligence in shooting the well at night, or in failing to have it capped or connected with a tank, or in failing to have some one on guard during the night? If we apply this test it is apparent that the defendants can not be held responsible. There was no close connection between the alleged'acts of negligence and the explosion. It can be said that it was possible, of course, that lightning might strike the well and cause an .explosion, or that some careless person might throw a lighted match into it, or fire might by soipe accidental means be brought in connection with the gas; but it is apparent that in the usual or ordinary course of events these would not be expected to occur.

Is the question one of law for the court or one of fact for the jury? In Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399, it was expressly held:

“Where it is either admitted, or from the facts as found established, that two distinct, successive causes, unrelated in their operation, conjoined to produce a given injury, the question of remote and proximate cause becomes one of law for the decision of the court, and not of fact for the determination of the jury, and the determination of this question of law by the jury is not binding or conclusive oh the court.” (Syllabus.)

In Stone v. Boston & Albany Railroad, 171 Mass. 586, 51 N. E. 1, the contention was made that it was a question for the jury, and the court said:

“But where upon all the evidence the court is able to-see that the resulting injury was not probable, but remote, the plaintiff fails to make out his case, and the-court should so rule the same as in cases where there is no sufficient proof of negligence. McDonald v. Snelling, 14 Allen, 290, 299.” (Page 543.)

(To the same effect is Pass Ry. Co. v. Trich, 117 Pa. St. 390, 11 Atl. 627, 2 Am. St. Rep. 672.)

The petition in the present case was not attacked by demurrer, but defendants objected to any evidence, and now urge the overruling of the objection as error. Without stopping to consider whether the petition, aided by all the presumptions in its favor when so attacked, stated a cause of action, there can be no doubt that the petition could not have withstood an attack by demurrer. The case of McGahan v. The Indianapolis Natural Gas Company, 140 Ind. 335, 49 Am. St. Rep. 199, is difectly in point. That was an action to recover for injury caused by the escape and explosion of natural gas through negligence. The complaint was held bad on demurrer because it failed to show what brought about the explosion. Although the question arose there on the construction of the pleading, the following language of the opinion applies with peculiar force to the facts in this case:

“But we can say, as a matter of common knowledge, that the injury was not due to spontaneous combustion, and that it was impossible without some agency acting upon the leaking gas; therefore, we' can say further that but for such agency the injury had not been.

“We can not say-that the intervening agent was not a responsible agent, one not conscious of the presence and dangerous character of the explosive, as an infant or an insane person. The facts essential to a consideration of this important question are wholly absent. The burden rested upon the appellant to allege facts showing that the injury was due to the appellee’s negligence, and, from the facts alleged, we learn that the omission complained of supplied the condition upon which, necessarily, some agent acted in producing the injury, the omission being an antecedent to the explosion. If it can be said that the escaping gas was the direct and efficient or proximate cause of the injury to the exclusion of every fact or circumstance that might have operated upon it, and that no agency could have taken it up and employed it so as to have become the dominating and effective cause, then this complaint is sufficient, so far as this question is concerned; otherwise it is not.” (Pages 337, 338.)

It was further held that, by-indulging the ordinary presumptions against the pleadings, in the absence of any allegation as to the agency necessary to have intervened the court will presume that it was a responsible agent.

Here the plaintiffs make no attempt to explain the manner in which the oil and gas came in contact with fire, and even offer proof showing that there was no fire in close proximity. It is therefore conclusively established that some intervening agency necessarily combined with the alleged negligent acts of the defendants to produce the injury, and, whatever its nature may have been, that it was not related to the prior or remote cause. The general verdict of the jury is therefore not conclusive, and the question must be determined by the court.

Ordinarily the question whether a given act or omission is the proximate cause of an injury is for the jury, but where the facts are undisputed, and the court can ■see that the resulting injury was not probable but remote, it is the duty of the court to determine the question of proximate cause and not send it to a jury. (Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399; Read v. Nichols et al., 118 N. Y. 224, 7 L. R. A. 130, 23 N. E. 468; The Pennsylvania Company v. Whitlock, 99 Ind. 16, 50 Am. Rep. 71; West Mahanoy v. Watson, 112 Pa. St. 574, 3 Atl. 866; Behling v. Pipe Lines, Appellant, 160 Pa. St. 359, 28 Atl. 777, 40 Am. St. Rep. 724; Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 27 L. R. A. 583, 63 Fed. 400; Taylor v. Baldwin, 78 Cal. 517, 21 Pac. 124.)

It follows that the judgment must be reversed, and. the cause remanded for a new trial.