Salisbury v. Herchenroder

106 Mass. 458

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1871
• Status: Published

Opinion

Chapman, C. J.

If the defendant’s sign had been rightfully placed where it was, the question would have been presented whether he had used reasonable care in securing it. If he had done so, the injury would have been caused, without his fault, by the extraordinary and unusual gale of wind which hurled it across the street and against the plaintiffs’ window. The party injured has no remedy for an injury of this character, because it is produced by the vis major. For example, a chimney or roof, properly constructed and secured with reasonable care, may be blown off by an extraordinary gale, and injure a neighboring building; but this is no ground of action.

But the defendant’s sign was suspended over the street in violation of a public ordinance of the city of Boston, by which he was subject to a penalty. Laws & Ordinances of Boston (ed. 1863) 712. He placed and kept it there illegally, and this illegal act of his has contributed to the plaintiffs’ injury. The gale would not of itself have caused the injury, if the defendant had not wrongfully placed this substance in its way.

It is contended that the act of the defendant was a remote, and not a proximate cause of the injury. But it cannot be regarded as less proximate than if the defendant had placed the sign there while the gale was blowing; for he kept it there till it was blown away. In this respect, it is like the case of Dickinson v. Boyle, 17 Pick. 78. The defendant had wrongfully placed a dam across a stream on the plaintiff’s land, and allowed it to remain there ; and a freshet came and swept it away; and the defendant was held liable for the consequential damage. It is also, in this respect, like the placing of a spout, by means of which the rain that subsequently falls is carried upon the plaintiff’s land. The act of placing the spout does not alone cause the injury. The action of the water must intervene, and this may be a considerable time afterwards. Yet the placing of the spout is regarded as the proximate cause. So the force of gravitation brings down a heavy substance, yet a person who carelessly places a heavy substance where this force will bring it upon another’s head does the act which proximately causes the injury produced by-it. The fact that a natural cause contributes to produce an injury, which could not have happened without the unlawful act of the defendant, does not make the act so remote as to excuse him. The case of Dickinson v. Boyle rests upon this principle. See also Woodward v. Aborn, 35 Maine, 271, where the defendant wrongfully placed a deleterious substance near the plaintiffs’ well, and an extraordi nary freshet caused it to spoil the water; also Barnard v. Poor, 21 Pick. 378, where the plaintiffs’ property was consumed by a fire carelessly set by the defendant on an adjoining lot; also Pittsburgh City v. drier, 22 Penn. State, 54; Scott v. Bunter, 46 Penn. State, 192 ; Polack v. Pioche, 35 Cal. 416, 423.

Judgment for the plaintiffs affirmed.