ant, at the request of his employer. Upon entering the office of Sage, he found Mr. Sage and a person having a little satchel in his hand (who was a stranger to him, but whose name was subsequently ascertained to be Norcross) standing by the entrance of the anteroom, talking. The plaintiff passed in without speaking to Mr. Sage, and entered the anteroom, to there await the termination of the conversation. He stood near the centre of a table, at the end of the room farthest from the door at which Mr. Sage was standing, which table stood next to a railing in which there was a gate opening into a small space between the railing and a window looking upon Rector Street, in which small space was a door opening into Mr. Sage's private office. While standing at the table, the plaintiff did not hear any of the conversation between the defendant and the other man. After he had stood there, facing the window, half a minute, or a minute at the outside, Mr. Sage came from behind, away from his visitor, but still looking at him, and placed his hand upon the plaintiff's shoulder without speaking to him. He then took his left hand down from the plaintiff's shoulder, and took the plaintiff's left hand in both of his, and drew the plaintiff gently towards him, and gently turned him around, and stood with one thigh resting upon the outer corner of the table. The plaintiff testified that the defendant did not use any force whatever on him, and that the only exercise of power on the part of Sage of which he was conscious at the time was that it was just sufficient to move him, but without any idea of force, or anything of the sort, and that he moved voluntarily, because he offered no resistance, and that he was not conscious that Sage was pulling him at the time. The result of this change of position was to bring the body of the plaintiff between the defendant and the visitor, the body of the plaintiff covering the body of Sage's body. After Sage had been in this position a second or two, he spoke to the visitor, and said, as the plaintiff testified, "If I trust you, why can't you trust me? or, "if you can't trust me, I can't trust you." At that moment an explosion took place, and the plaintiff and Mr. Sage were thrown upon the floor; a person who was standing by the Rector Street window was blown through the window and killed; the visitor with whom Mr. Sage was talking was blown to pieces; and the rooms were a general wreck. It further appears from the evidence that the stranger, who stood in the doorway when the plaintiff entered, had handed to the defendant the following letter: "This carpet bag I hold in my hands contains ten pounds of dynamite, and, if I drop this bag on the floor, it will destroy this building in ruins, and kill every human being in it. I demand $1,200,000, or I will drop it. Will you give it, yes or no?" The plaintiff was severely injured by the explosion, and this action was brought to recover damages claimed to have been sustained by reason of the alleged wrongful act of the defendant in using the plaintiff's body to protect himself from the effects of the anticipated explosion; and the

question presented upon this appeal is whether this action can be maintained.

It is urged upon the part of the defendant that the plaintiff's case wholly failed to establish that the defendant's action was either wrongful, or that it was a proximate cause of the plaintiff's injury, or an efficient cause without which the injury would not have happened, and that Norcross being the sole cause of the injury, Sage's act was not a proximate cause of the accident or of the damage to the plaintiff; that it did not even contribute to the accident or the damage, and hence Sage is not liable; that it was not even proved to be one of several concurring acts that produced the explosion, which explosion was the only and sole cause of the plaintiff's damage; and that the plaintiff's testimony affirmatively establishes that his injuries were caused by the unlawful act of Norcross in exploding the dynamite, an act with which the defendant was not in any way connected, and for which, therefore, he was not responsible. ...

cases,

The defendant also cites the case of Ring v. City of Cohoes, 77 N. Y. 83; Searles v. Railway Co., 101 N. Y. 661, 5 N. E. Rep. 66 [post, No. 359]; Taylor v. City of Yonkers, 105 N. Y. 203, 11 N. E. Rep. 642; Ayres v. Village of Hammondsport, 130 N. Y. 665, 29 N. E. Rep. 265; Grant v. Railroad Co., 133 N. Y. 657, 31 N. E. Rep. 220; and other in support of the proposition that when several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes, but it cannot be attributed to a cause unless without its operation the accident would not have happened. These cases, however, seem to us to have no application to the case at bar. Those were cases in which the question arose as to whether the plaintiff could recover because of alleged negligence of the defendant, and the proof showed that there were two causes, from either one of which the accident might have occurred, in respect to one of which the defendants were chargeable with negligence, and in respect to the other they were not; and the Court held that a recovery could not be had unless it was proved that the injury resulted from the cause in respect to which the defendants were chargeable with negligence.

Our attention is also called to the language of Mr. Justice HOLMES, in his work on The Common Law, where it is laid down that the general principle of our law is that loss from accident must lie where it falls, and that this principle is not affected by the fact that a human being is the instrument of misfortune. And the language of Mr. Justice NELSON is cited where he says: "No case or principle can be found, or, if found, can be maintained, subjecting an individual to liability for an act done without fault on his part. . . ." But the facts of the case at bar do not necessarily place the defendant in the position of a person doing a lawful act, and thereby causing the plaintiff to be

injured. . . . The jury would have a right to infer from the evidence in this case that the defendant, being in great fear lest Norcross would carry out the threat contained in his written memorandum to him, and explode the dynamite which he had in his bag, placed the plaintiff between himself and the apprehended danger as the best possible screen which he had at hand. Now, if the defendant put his hand upon or touched the plaintiff, and caused him to change his position, with that intent, he was guilty of a wrongful act towards the plaintiff; and, if the plaintiff was injured by the happening of the anticipated catastrophe, then the burden is thrown upon the defendant of establishing that his wrongful act did not in the slightest degree contribute to any part of the injury which the plaintiff sustained by reason of the explosion. . . . Being the wrongdoer in attempting to make this improper use of the plaintiff's body, he must clear his skirts of any possible inference that some at least of the injuries of the plaintiff may have resulted from his wrongful act. .

We are of opinion, therefore, in view of the fact that from this evidence the jury might find that the defendant used this plaintiff as a shield against apprehended danger, of which he knew the plaintiff to be ignorant, that a dismissal of the complaint cannot be sustained. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.

(On Appeal. 1899. 158 N. Y. 73, 101, 52 N. E. 679.)1 MARTIN, J. When we apply to the undisputed facts of this case these rules relating to proximate cause, it becomes quite manifest that the judgment in this action cannot be upheld. All the injuries which the plaintiff sustained were caused directly and immediately by the act of Norcross in exploding the dynamite. That was clearly the proximate, and we think the only, cause of the plaintiff's injury. It was the only efficient cause, as, confessedly, without the explosion the plaintiff would not have been injured; and under no circumstances can it be properly said that the act of the defendant in changing the plaintiff's position a few inches to the left of where he previously stood caused the explosion or occasioned the catastrophe. Surely that was not an act without which the explosion would not have occurred; nor can it be held to have been the proximate cause of the explosion. The most that can be said is that it produced a situation which existed at the moment it occurred. Obviously, the explosion would have occurred if the defendant had moved the plaintiff in an opposite direction, or had not moved him at all. . . . There was no evidence in the case of any necessary relation of cause and effect between the act of which the plaintiff complains and the explosion which caused his injury. . .. The Court erred in not directing a verdict for the defendant on that ground.

1 [This appeal followed an intermediate trial in which the case was allowed to go to the jury.]

SUB-TITLE (II): PLURAL CAUSES

Topic 1. Plural Causes of a Harm Single and Inseparable

359. THOMPSON v. LOUISVILLE & NASHVILLE RAILROAD

COMPANY

SUPREME COURT OF ALABAMA. 1890

91 Ala. 496, 8 So. 406

APPEAL from Circuit Court, Jefferson county; JAMES B. HEAD, Judge.

This action was brought by the appellant, Thompson, as administrator of J. R. Thomas, deceased, against the appellee, and sought to recover damages for an injury suffered by his intestate on account of the alleged negligence of the defendant, which resulted in his death. Among others, the Court gave, at the defendant's request, the following charge: "No. 17. If the evidence leaves the jury in doubt and uncertainty as to whether the accident or the poison caused the death of the plaintiff's intestate, and because of such doubt the evidence fails to produce in the minds of the jury a proper conviction or satisfaction that his death was caused by the injury he received at the 'time he fell from the car, and not from the poison, then you must find for the defendant "; to which the plaintiff duly excepted. There were verdict and judgment for the defendant, and the plaintiff brings this appeal.

Smith & Lowe and Mason & Martin, for appellant. Hewitt, Walker & Porter, for appellee.

COLEMAN, J. The suit is brought to recover damages for the injuries alleged to have been wrongfully inflicted by the defendant on J. R. Thomas, an employee, on the 22d day of September, 1889, and from which, it is charged, the death of said employee resulted on the 29th September, 1889. The section of the Code (§ 2591) under which this suit is brought provides that the personal representative may sue if such injury "results" in the death of the servant or employee. The section, so often construed by this Court, provides that the suit may be brought by the representative to recover damages for the injury, whereby the death was "caused." Code, § 2589. "Cause" is that which produces an effect. "Result" is the effect of one or more concurrent causes. The same principles of the law are alike applicable in either case. The testimony of skilful physicians tended to show that the injury inflicted was mortal, and the injured party would have died from the effects of the injury "in a short time." There was evidence also tending to show the wounds were not "necessarily mortal." The evidence showed that by mistake the wife of deceased, who was his

nurse, gave to him internally four or five grains of corrosive sublimate, which had been left by the physician to be used as a wash, and not to be given internally. It was proven that the poison would have caused the death of a well person, and it was in evidence that the poison was the immediate cause of the death. The testimony of the physicians further tended to show the wound was of such character "that it may have hastened the death"; "may have caused him to die sooner from the effects of the corrosive sublimate than if he had not received the wound"; that the corrosive sublimate administered to Thomas would have produced death "quicker," in a man in Thomas' condition from the wounds received by him, "than in a well man.". Among others, the Court charged the jury that, under the evidence of this case, the death of plaintiff's intestate must have resulted either from the injury he received or from the poison he took; that the injury and the poison cannot both be the cause of his death; further, that his death could not be the result of the injury and at the same time the result of the poison; further, that if he died from the effects of the poison, then they must find for the defendant, although his death was accelerated by reason of the injury received, or if he died sooner from the effects of the poison than he would have died if he had not been injured.

1. It does not follow that, because a man cannot die but once, there cannot be two or more concurrent, co-operative, and efficient causes to effect the one killing. A person may be killed by "beating and starving." There may be contributing causes. 3 Greenleaf Evidence, § 141. If, as the testimony tended to show, the injury received was mortal, and caused decedent to "die sooner" or quicker from the effects of the poison than he would have died, had he not been injured, it is difficult to perceive how the poison can be regarded as the "sole" cause of his death at the time it occurred. If he would have lived longer without the injury than with, the injury necessarily contributed to and accelerated his death, and was a part of the cause, causing death at the time it occurred. It is not intended by this Court to assert the doctrine that, if a party inflict an injury not mortal, and, by the intervention of other causes, death results, the party inflicting the injury in all cases shall be held responsible for the death. The first cause may or may not be regarded as the proximate cause of a result according to the facts of the case. . . . But the [trial] Court ought not to have charged the jury, as a conclusion of law, that death did not and could not have resulted from both causes, the injury and the poison, in the face of the testimony of the physicians examined as witnesses to the effect that the death of the decedent was "accelerated" by the injury, or that the injury may have caused him to die "quicker" than he would have died without the injury. . . . We have been cited to no authority in a suit for the recovery of damages, where it was shown that, if the "result" was the necessary and inevitable effect of a first cause, and a new independent force intervened sufficient of