described; and, secondly, whether that negligence occasioned the accident. Verdict for the plaintiff. In the same term (May 8th) a rule nisi was obtained for a new trial, on the grounds of misdirection, and that the verdict was against evidence. In Michaelmas term, 1840, Shee, Serjt., showed cause. This case, in principle, resembles Dixon v. Bell, 5 M. & S. 198, where defendant sent a child for a loaded gun, desiring that the person who was to deliver it should take out the priming, which he did; the gun, after being delivered, went off by the imprudent act of the child, and wounded plaintiff's son; and the defendant was held liable. It may be contended here that the boy who led the horse on was in fault, and not the defendant. But in Illidge v. Goodwin, 5 Car. & P. 190, the defendant's cart and horse were left in the street unattended, and a person going by whipped the horse, and caused him to back the cart against the plaintiff's window; it was suggested that the passer-by, and not the defendant was liable: and an attempt was also made to prove that the bad management of the plaintiff's shop-man contributed to the accident; but TINDAL, C. J., said that, supposing this case to be believed, it did not amount to a defence, adding: "if a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done." Here the substantial cause of injury was a gross negligence in the defendant's carman. Kelly, contra. . . . Lord DENMAN, C. J., in this term (January 18th), delivered the judgment of the Court. This case was tried before my brother WILLIAMS at the sittings in Easter term, 1839. It was an action of tort for negligence by the defendant's servant, in leaving his cart and horse half an hour in the open street at the door of a house in which the servant remained during that period. The evidence for the plaintiff proved that, at the end of the first half-hour, he, a child of very tender age, being between six and seven years old, was heard crying, and, on the approach of the witnesses, was found on the ground, and a wheel of the defendant's cart going over his leg, which was thereby fractured. The defendant's counsel first applied for a nonsuit. The learned judge refused the application; and no question was made before us that these facts afforded prima facie evidence of the mischief having been occasioned by the negligence of the defendant's servant in leaving the cart and horse. Witnesses were then called to establish a defence by a fuller explanation of the facts that had occurred. They proved that, after the servant had been about a quarter of an hour in the house, the plaintiff and several other children came up, and began to play with the horse, and climb into the cart and out of it. While the plaintiff was getting down from it, another boy made the horse move, in consequence of which the plaintiff fell, and his leg was broken as before mentioned. On this undisputed evidence (for there was no cross examination of the witnesses) the defendant's counsel claimed the judge's direction in his favour, contending that, as the plaintiff had obviously contributed to the calamity, it could not be said in point of law to have been caused by the negligence of the defendant's servant. My learned brother, however, thought himself bound to lay all the facts before the jury, and take their opinion on that general point. They found a verdict for the plaintiff. It is now complained that such direction was not given; and at all events the jury are said to have given a verdict contrary to the evidence. The case came on in the new trial-paper last term, and has been fully argued before us. It is argued that the mischief was not produced by the mere negligence of the servant, as asserted in the declaration, but at most by that negligence in combination with two other active causes, the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart and so committing a trespass on the defendant's chattel. 1. On the former of these two causes no great stress was laid and I do not apprehend that it can be necessary to dwell at any length. For if I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if the injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first. If, for example, a gamekeeper, returning from his daily exercise, should rear his loaded gun against a wall in the playground of school-boys whom he knew to be in the habit of pointing toys in the shape of guns at one another, and one of these should playfully fire it off at a school-fellow and maim him, I think it will not be doubted that the gamekeeper must answer in damages to the wounded party. This might possibly be assumed as clear in principle; but there is also the authority of the present Chief Justice of the Common Pleas in its support; Illidge v. Goodwin, 5 Car. & P. 190. . . . For these reasons, we think that nothing appears in the case which can prevent the action from being maintained. It was properly left to the jury, with whose opinion we fully concur. Rule discharged. 459. LANE v. ATLANTIC WORKS SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1872 111 Mass. 136 TORT. The declaration was as follows: "And the plaintiff says that the defendants carelessly left a truck, loaded with iron, in Marion Street, a public highway in Boston, for the space of twenty minutes and more; and the iron on said truck was so carelessly and negligently placed that it would easily fall off; and that the plaintiff was walking in said highway, and was lawfully in said highway, and lawfully using said highway, and in the exercise of due care; and said iron upon said truck was thrown and fell therefrom upon the plaintiff in consequence of the defendants' carelessness, and the plaintiff was severely bruised and crippled," &c. The answer was a general denial of the plaintiff's allegations. At the trial, . . . the plaintiff, Fergus Lane, introduced evidence that the defendants left a truck with a bar of iron on it standing in front of their works on Marion Street, which was a public highway in Boston; that the iron was not fastened, but would easily roll off the truck; that the plaintiff, then seven years old, and a boy about the same age named James Conners, were walking, between six and seven in the evening, on the side of Marion Street opposite the truck and the defendants' works; that Horace Lane, a boy twelve years old, being near the truck, called to them to come over and see him move it; that the plaintiff and Conners said they would go over and watch him do it; that they went over accordingly; that the plaintiff stood near the truck to see the wheels move, as Horace Lane took hold of the tongue of the truck; that Horace Lane moved the tongue somewhat; that the iron rolled off and injured the plaintiff's leg; and that neither the plaintiff nor Conners touched the iron or truck at all. . . . The defendants requested the Court to give the following instruction: "While it is true that negligence alone on the part of Horace Lane, which contributed to the injury, combining with the defendants' negligence, would not prevent a recovery, unless the plaintiff's negligence also concurred as one of the contributory causes also; yet, if the fault of Horace Lane was not negligence, but a voluntary meddling with the truck or iron, for an unlawful purpose, and wholly as a sheer trespass, and this culpable conduct was the direct cause of the injury which would not have happened otherwise, the plaintiff cannot recover." The judge did not give the ruling requested, but gave rulings . . . as follows: "If the sole or direct cause of the accident was the act of Horace Lane, the defendants are not responsible. If he was the culpable cause of the accident, that is to say, if the accident resulted from the fault of Horace Lane, they are not responsible. But if Horace Lane merely contributed to the accident, and if the accident resulted from the joint negligence of Horace Lane in his conduct in regard to moving the truck and the negligence of the defendants in leaving it there, where it was thus exposed, or leaving it so insecurely fastened that this particular danger might be reasonably apprehended therefrom, then the intermediate act of Horace Lane will not prevent the plaintiff from recovering, provided he himself was in the exercise of due and reasonable care."... The jury returned a verdict for the plaintiff for $6000 and the defendants alleged exceptions. A. A. Ranney and N. Morse, for defendants. W. G. Colburn, for plaintiff. COLT, J. 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. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise. Whether in any given case the act charged was negligent, and whether the injury suffered was, within the relation of cause and effect, legally attributable to it, are questions for the jury. They present oftentimes difficult questions of fact, requiring practical knowledge and experience for their settlement, and where there is evidence to justify the verdict it cannot be set aside as matter of law. The only question for the Court is, whether the instructions given upon these points stated the true tests of liability. . . . 3. The last instruction asked was rightly refused. Under the law as laid down by the Court the jury must have found the defendants guilty of negligence in doing that from which injury might reasonably have been expected, and from which injury resulted; that the plaintiff was in the exercise of due care; that Horace Lane's act was not the sole, direct, or culpable cause of the injury; that he did not purposely roll the iron upon the plaintiff; and that the plaintiff was not a joint actor with him in the transaction, but only a spectator. This supports the verdict. It is immaterial whether the act of Horace Lane was mere negligence or a voluntary intermeddling. It was an act which the jury have found the defendants ought to have apprehended and provided against. Dixon v. Bell, 5 M. & S. 198; Mangan v. Atterton, L. R. 1 Ex. 239; Illidge v. Goodwin, 5 C. & P. 190. Exceptions overruled. 460. FRANCIS WHARTON. Treatise on Negligence. (1874. § 134.) Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter as to which I am not contractually bound; another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a non-conductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. I may be liable to him for my negligence in getting him into difficulty, but I am not liable to others for the negligence which he alone was the cause of making operative. 461. STONE v. BOSTON & ALBANY RAILROAD SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1897 171 Mass. 536, 51 N. E. 1 TORT, for the loss of the plaintiff's property by fire caused by the alleged negligence of the defendant. Trial in the Superior Court, before HOPKINS, J., who ruled that the plaintiff could not recover, and directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion. The case was argued at the bar in October, 1897, and afterwards was submitted on briefs to all the justices except HOLMES, J. W. S. B. Hopkins, (C. M. Rice and H. W. King with him,) for the plaintiff. F. P. Goulding, for the defendant. ALLEN, J. This is an action of tort to recover for the loss of the plaintiff's buildings and other property by fire, under the following circumstances. The defendant owned and operated a branch railroad extending from its main line at South Spencer to the village of Spencer, and had at the Spencer terminus a passenger station, a freight house, and a freight yard, all adjoining a public street. On the side of the freight house, and extending beyond it about seventy-five feet, was a wooden platform about eight feet wide and four feet high, placed upon posts set in the ground, the under side being left open and exposed. The main tracks ran along on the front side of this platform and freight house, and on the rear of the platform there was a freight track, so near as to be convenient to load and unload cars from and upon it. The plaintiff was engaged in the lumber business, buying at wholesale, and selling at wholesale and retail, manufacturing boxes, etc. His place of business comprised several buildings, some of which were across the street from the defendant's buildings; and his principal buildings were about seventy-five feet from the place on the defendant's premises, beneath the platform, where the fire originated. The evidence tended to show that the platform was mostly used for the storing of oil which had been brought upon the railroad, until it was taken away by the consignees; and that the platform had become thoroughly saturated with oil which had leaked from the barrels, and which not only saturated the platform but dripped to the ground beneath. More or less rubbish accumulated from time to time under the platform, and was occasionally carried away. The evidence tended to show that this space below had been cleaned out two or three weeks before the fire. |