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damages for the loss of certain logs and lumber in which the plaintiff has an interest, alleged to have been destroyed by fire in consequence of the defendant company's negligence. The defendant's plea was not guilty. . . . At the fourth trial, on September 10, 1883, the following facts were shown:

On May 11, 1880, the plaintiff was engaged in lumbering upon a tract of land adjoining the railroad of the defendant, under a contract with the owner thereof, by which he agreed to manufacture a lot of logs into lumber in consideration of a share of the manufactured product, and had done a considerable amount of work in the performance of his contract. On the afternoon of that day, between 4 and 5 o'clock, one of the defendant's trains passed over that part of its road near the scene of the plaintiff's operations, and soon afterwards smoke was seen issuing from a stump which stood upon the defendant's right of way and about twenty feet from the track. The testimony for the plaintiff tended to show that the engine which drew the train was not provided with a proper spark arrester; that, in consequence of this lack, it threw out sparks of great size and in large quantities, and that the firing of the stump was caused thereby. The stump was an old hemlock stump, quite rotten and punky. There was quite a bed of dead grass around it, though not a great deal immediately beside it. When the smoke was discovered, one of the plaintiff's employees was sent to extinguish the fire, and on his return he reported that he had done so. No smoke was seen after that, until next morning, about ten o'clock, when the plaintiff sent another employee to look after the fire. Finding the stump burning about the roots, the man threw water upon it until, as he supposed, the fire was extinguished. He remained there, however, for half or three quarters of an hour, to satisfy himself that no fire remained, and went away so believing. About noon the same day a wind arose and a fire broke out in the vicinity of the stump, which the plaintiff and his employees were unable to control on account of the wind and the dryness of the weather, and which burned over the tract on which the plaintiff was operating, destroying his logs and lumber.

At the close of the testimony, the Court, SITTSER, P. J., charged the jury in part as follows: . . . "It is an important question in this case for you to determine whether the setting fire to the stump was the proximate, or the remote cause of the burning of the logs. That is, was the burning of the logs the natural and probable consequence of the firing of the stump, in the light of the attending circumstances? . . . A party is responsible for the natural and probable consequences of his negligence, and not for unforeseen events produced by intervening accidents. . . .

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The plaintiff requests the court to charge: "1. If the jury find that the fire was set in the stump by the negligence of the defendants, and that it was the proximate cause of the plaintiff's injury, he is

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entitled to recover unless the jury find that his own negligence contributed in some measure to the injury. . . ."

The jury rendered a verdict for the plaintiff for $1,643.25. A rule for a new trial was discharged, upon condition that the plaintiff should within ten days file a remittitur of all the verdict in excess of $800. The plaintiff having complied with this condition, judgment was entered in his favor for $800 and costs; whereupon the defendant

took this appeal. . . .

Mr. Rodney A. Mercur and Mr. Edward Overton (with them Mr. John F. Sanderson), for the appellant: 1. The claim that the firing of the stump was the proximate cause of the plaintiff's loss is founded on presumptions wholly foreign to the present case. The probable consequence of the fire, and all that the defendant had a right to expect from it, was the destruction of the rotten stump upon the defendant's own land. . . . 35 N. Y. 210; Doggett v. Railroad Co., 78 N. C. 306. Under these authorities it was the duty of the Court to instruct the jury whether the firing of the stump was the proximate cause of the injury, the facts being undisputed. . . .

Mr. H. N. Williams and Mr. I. McPherson (with them Mr. E. J. Angle and Mr. R. H. Williams), for the appellee. . . .

Opinion, Mr. Justice MITCHELL.

The test by which the line is to be drawn between proximate and remote cause, in reference to liability for the consequences of negligence, has been firmly established by the three cases of Penna. R. Co. v. Kerr, 62 Pa. 353; Penna. R. Co. v. Hope, 80 id. 373; Hoag v. R. Co. . . .

The three leading cases above referred to, though frequently cited on opposite sides of the same argument, are not at all in conflict in principle. The different results which were reached in them depended not on any different view of the law, but of the facts, and on the application of the familiar doctrine that the Court will decide it as a matter of law. In Penna. R. Co. v. Kerr, the negligence had been held by the Court below to be the proximate cause of the plaintiff's loss. This Court held that it was remote, and did not award a new venire, but said that it would do so if the plaintiff should desire it upon grounds shown. The question was then new; and, from what was said about. the venire, the Court itself does not seem to be entirely clear that it should be decided as matter of law. It may be doubted whether, on the same facts, the Court would not now send it to a jury. Certainly no subsequent case has assumed to decide where the facts were so near the line. Hoag v. Railroad Co. was a much clearer case, and so were Pittsburgh, etc. Ry. Co. v. Taylor, 104 Pa. 306; West Mahanoy Tp. v. Watson, 116 Pa. 344; South Side Pass. Ry. Co. v. Trich, 117 Pa. 390, and the other cases where the Court has pronounced the negligence to be remote as matter of law. But, whatever the result of the views taken of the facts in these cases, the principles of decision are the same in all.

1. In the present case, the learned judge left the question of proximate or remote cause to the jury, in substantial conformity with the doctrine of Penna. R. Co. v. Hope. Appellant, however, claims that the succession of events was so broken as to bring the case under Hoag v. Railroad Co., and require the judge to direct the jury in its favor. The break in the chain of events was merely a gap in the time. Had the fire extended to the plaintiff's lumber without interval, on the same afternoon, this case would have been exactly parallel with Penna. R. Co. v. Hope. But the fact that the fire smouldered awhile in the stump, and, after it was supposed to have been extinguished, broke out again the next day, while it makes the conclusion less obvious - that the damage was done by the same fire, does not interpose any new cause, or enable the Court to say as matter of law that the causal connection was broken.

2. But it is argued that it was not until the next morning after the fire started in the stump, and during the time when it was apparently extinguished, that the wind rose, and became a new cause of the spread of the fire to the plaintiff's lumber. This, however, was, like the point already considered, dependent on the circumstances. In Penna. R. Co. v. Hope, one of the facts was a strong wind which carried the fire, and so, also, it was in Penna., etc. R. Co. v. Lacey, 89 Pa. 458, and in Lehigh V. R. Co. v. McKeen, 90 Pa. 129; and in this last case TRUNKEY, J., says, the jury could also determine whether dry weather and high winds, in the spring time, are extraordinary, and whether, under these conditions, . . . the injury was within the probable foresight of him whose negligence ran through from the beginning to the end. . . . The lapse of time before the wind rose, in this case, was therefore not clearly a new cause to be so pronounced by the Court, but a circumstance to be considered with the others, by the jury. . .

Judgment affirmed.

SUB-TITLE (II): SUNDRY RULINGS DECLARING REMOTENESS AS MATTER OF LAW IN SPECIFIC CIRCUMSTANCES

Topic 1. Intervening Event or Force of Inanimate Nature

446. SHARP v. POWELL

COMMON PLEAS. 1872

L. R. 7 C. P. 253

[Printed ante, as No. 431.]

447. HAVERLY v. STATE LINE & SULLIVAN RAILROAD

COMPANY

SUPREME COURT OF PENNSYLVANIA. 1890

135 Pa. 50, 9 Atl. 1013

[Printed ante, as No. 444; Point 2 of the opinion]1

1 [TOPIC 1. PROBLEMS:

In the plaintiff's building, abutting on the street, was a window with a broken pane of glass, left unrepaired by the defendant's negligence. A high wind blew the window in, and a piece of the broken glass fell on the plaintiff, who was passing in the street. Was the defendant responsible? (1899, Detzur v. Brewing Co., 119 Mich. 282, 77 N. W. 948.)

The defendant's ship was lying in stream with a cargo of oil. The defendant negligently allowed the oil to escape, so that the surface of the water was covered with it for some distance around. A fire occurred at the wharf from other causes. The fire caught the oil and spread along the water to the plaintiff's ship, which was burned. Was this too remote? (1909, The Santa Rita, D. C. Cal., 173 Fed. 413.)

The defendant floated log-timber down a stream. By reason of an unusual flood, which in that climate however was not unknown, the logs were jammed and broke the plaintiff's dam. Was this too remote? (1902, Gulf R. C. Co. v. Walker, 132 Ala. 553, 31 So. 374.)

The defendant, carrying the plaintiff's wool from Buffalo to Boston, negligently detained it six days at Syracuse. On arrival at Albany, it was damaged by a sudden and violent flood in the Hudson river. Was this too remote? (1859, Denny v. N. Y. C. R. Co., 13 Gray, 481.)

The defendant wrongfully shot the plaintiff's dog on the street. The dog rushed into the plaintiff's house and ran into the plaintiff, who was knocked over and injured. Was this too remote? (1898, Isham v. Dow, 70 Vt. 588, 41 Atl. 585.)

The plaintiff's building caught fire, and the fire-engines necessarily laid their hose from the hydrants across the defendant's railroad track. The defendant's train passed and cut the hose, and for lack of water the fire spread and damaged the building as it would not otherwise have done. Was this too remote? (1872, Metallic C. Casting Co. v. R. Co., 109 Mass. 277; 1905, Little Rock T. & E. Co. v. McCaskill, 75 Ark. 133, 86 S. W. 997.)

The plaintiff's mill adjoined a street, and a gas supply-pipe to the mill was controlled by a tap at the surface of the street. The defendant had negligently covered this tap. A fire broke out in the mill, but was under control, when the gas-pipe at the mill end melted. The street-tap could not be got at to turn off the gas, and the mill was destroyed. Was this too remote? (1898, Cochran v. R. Co., 184 Pa. 565, 39 Atl. 296.)

The defendant maintained a water-system, and the street-main overflowed and the water damaged the plaintiff's house. The escape-valve, which should have prevented the overflow, had worked well for 25 years; but on this occasion a specially severe frost had caused ice to form and thus to obstruct it. By inspection, the defendant might have discovered and removed the ice before the overflow occurred. Was this too remote? (1856, Blyth v. Birmingham Waterworks Co., 11 Exch. 781.)

The defendant carelessly backed an engine on a switch-track, which formed an arc with the main track. The engine collided with a train passing on the main track. No one was hurt; but the shock reversed the lever, and the engine

Topic 2. Intervening Act or Condition of the Plaintiff Himself

448. DICKSON v. HOLLISTER

SUPREME COURT OF PENNSYLVANIA. 1888

123 Pa. 421, 16 Atl. 484

BEFORE GORDON, C. J., PAXSON, STERRETT, GREEN, CLARK, WILLIAMS, AND HAND, JJ. No. 32, October Term, 1888, Sup. Ct.; court below, No. 407, March Term, 1887, C. P. No. 1.

On February 7, 1887, a summons in case was served in an action by Alfred Hollister against Dr. John S. Dickson and Sarah Dickson, his wife, to recover damages for personal injuries received through the alleged negligence of the defendants.

Issue. At the trial on November 17, 1887, the facts appearing in evidence were substantially as follows:

On April 10, 1886, the plaintiff, a resident of Utica, New York, was in Pittsburgh, as a travelling salesman for a drug house in New York city, and in the afternoon of that day when passing in front of property belonging to the defendant on Ninth street, in the pursuit of his business, he stepped upon the grating which covered a coal-hole in the foot way. The grating was displaced by his step upon it, and turned or slipped away, whereby the plaintiff fell into the coal-hole to his arm-pits, receiving a severe injury upon his right leg below the knee. He was confined to his bed at St. Charles Hotel for two months, under treatment, and was off duty for still another month. Erysipelas supervened during his confinement. His testimony as to the occurrence resulting in his injury sufficiently appears in the charge of the Court below and in the opinion of this Court. Dr. Orr, his physician, testified that the erysipelas set in on the sixth or seventh day; that erysipelas frequently though not usually followed wounds, but if there had been no wound there would have been no erysipelas.

At the close of the testimony, the Court, STOWE, P. J., charged the jury: . . . If the erysipelas would not have occurred if the injury had not happened, it is to be considered by the jury as part of the injury itself, to be compensated for in some way. The jury returned a verdict in favor of the plaintiff for $1,325. Judgment having been entered, the defendants took this writ, assigning error. . . .

Mr. D. T. Watson and Mr. A. H. Clarke, for the plaintiffs in error: .

went backwards around the switch. As the train passed further along the main track, the engine again collided with it where the switch entered the main track, and the plaintiff passenger was injured. Was this too remote? (1891, Bunting v. Hogsett, 139 Pa. 363, 21 Atl. 31.)

NOTES:

"Negligence as the Proximate Cause of Injury." (A. L. Reg., LVIII, 306.) "Proximate Cause - The Santa Rita." (M. L. R., VIII, 378.)]

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