
    George B. McGovern, Respondent, v. Degnon-McLean Contracting Company, Appellant.
    Second Department,
    June 28, 1907.
    Negligence — injury by hoisting bucket — proximate cause.
    Action for damages for personal injury caused by-alleged negligence. .
    The defendant excavating a subway was raising dirt by a steel bucket and derrick. The mast of the derrick was not vertical, so that the.boom and bucket tended to swing from the position where the excavated material was dumped into wagons. The plaintiff applied to the defendant’s foreman for work, and, being told to w,aif,- was'standing near the horses attached to a wagon- used to receive the material. As the bucket was about to be discharged it began to swing, the horses started and the plaintiff, who made a quick motion to avoid the horses, was injured by the bucket, which was discharged by the foreman, who Was not aware that the plaintiff was in any danger.
    
      Held, that neither the swinging of the boom and bucket, owing to the fact that the derrick was not vertical, nor the tripping of the bucket, was the proximate cause of the injury;
    That the plaintiff’s act in placing his hand on the side of the wagon and the starting of the horses were the proximate cause of the accident, and matters which could not reasonably be foreseen.
    Proximate and remote cause defined.
    Rich,- J., dissented.
    - Appeal by the defendant, the Degnon-McLean Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of June, 1906, lipón the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 29th day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      James F. Donnelly, for the appellant.
    
      Richard J. Donovan [Herbert D. Cohen with him on the brief], for the respondent.
   Hooker, J.:

The plaintiff’s hand was injured, and in this action for damages - therefor he has recovered a judgment upon the verdict of a jury. The defendant was a sub-contractor engaged in excavating, in connection with the construction of the subway, at the northwest corner of Forty-second street and Vanderbilt avenue, in the borough of Manhattan. The defendant was raising dirt out of the. excavation a few feet from the curb at that corner, and- loading it into wagons by means of a derrick and large steel bucket. Adopting the view' of the case most favorable to the plaintiff we are of the opinion that he may not recover in this action. The derrick consisted of a mast stepped into a platform- slightly above the level of the street, and, according to the plaintiff’s testimony, this mast tipped toward the north. The boom, from whose outer end depended the bucket, was during the course of this work swung from a position over the hole, easterly and southerly, to a position over wagons provided to receive dirt from the excavation as. it was released from the steel bucket, and the dirt was by them carted away. The hole through which the dirt was being hoisted was then a few feet from the northerly curb line of Forty-second street, and the wagons into which the dirt was being discharged were in the highway a few feet southeast of the hole. On the morning of the accident the plaintiff, looking for work, applied to the defendant’s foreman, who was directing the men in this excavation. , On being.ad vised that the foreman had no-work for him, he stayed about the place for fifteen or twenty min-' utes, during part of ..which time he and the foreman discussed the probability of the plaintiff getting work from a -mutual acquaintance' on Forty:second street, but whose exact address the foreman did not. kn.ow. Soon thereafter the-plaintiff started to go away, and had reached the north sidewalk when the foreman called him back, and told him he would ascertain the exact address. The foreman at that time was engaged in pulling the boom and bucket by means of a rope, from their position over the hole to a position over the wagon,.and consequently his -station was. just to the south of the wagon: The foreman called to the plaintiff jüst as the bucket was being hoisted from the hole,, and as this bucket and the derrick, pulled by the foreman' -with the rope, went south, -the plaintiff, followed and reached the north side of the wagon as the foreman, having brought the bucket directly over the wagon, let loose the rope: At that moment, owing, doubtless, to -the northerly inclination of the- mast of the derrick, the boom and bucket started ■ to swing north toward the plaintiff, who made a quick motion to avoid them. At that instant the horses attached to the wagon started to' move, and the- plaintiff, who was- very near -the wagon, fearing that his foot would he caught under the wheels, put his hand on the side of the wagon to clear' himself. At that moment the bucket.had. reached in its northerly swing a point directly over the plaintiff’s- hand, and the foreman, .without knowing' that the plaintiff was in any danger, opened the bucket by méaris óf 'tripping for the purpose of discharging its contents into, the1 wagon. The opening bucket caught the plaintiff’s hand and injured it.'

. ¡Neither the swing of the boom and bucket northerly, due, according to the plaintiff’s evidence, to the fact that' the mast- of the derrick was out of plumb, nor the tripping of the bucket- was the proximate cause of the injury. The plaintiff’s involuntary act in placing his hand on. the side' of the wagon to prevent his being caught by the wagon wheels as the horses moved was the direct cause, for the accident would not have happened but for the starting of the horses, and this act was not reasonably to be foreseen nor is it alleged as an act 'of negligence. “ A proximate cause is one- in which is involved the idea of necessity. It is one the connection'between which and the effect is plain and intelligible; it is one which can be used as a term by which a proposition ean_ be demonstrated, that is, one which can be reasoned from conclusively., A remote cause is one which is inconclusive in reasoning, because from it no certain conclusion can be legitimately drawn. In other words, a remote cause is .a cause the connection between which and the effect is uncertain, vague or indeterminate. It does not contain in itself the element of necessity between it and its effect. * * * ."From the remote cause the effect does not necessarily follow. This idea of necessity —r the necessary connection between' the cause and the effect — is the prime distinction between a proximate and a remote cause. The proximate cause being given, the effect must follow. But although the existence of the remote cause is necessary for the existence of the effect (for unless there has been a remote cause there can be no effect) still the existence of the remote cause does not necessarily imply the existence of the effect. The remote cause' being given, the effect may or may not follow.” (4 Am. Law Rev. 201, 204; Laidlaw v. Sage, 158 N. Y. 73, 99.) And in Hoffman v. King (160 N. Y. 618) it is said (p. 627): “ The damage must be. the proximate result of the negligent act. It must be such as the ' ordinary mind would reasonably expect as a probable result of the act, otherwise no liability exists.” Tested thus, it seems clear that the swinging of the bucket was the remote and not the proximate- cause of the plaintiff’s .injury; for by no process of logical reasoning could it be made to appear that the accident of pinching the plaintiff’s- fingers between the bucket and the wagon was likely to occur because of the tip of the mast, and the consequent liability of the boom and bucket to move; it is true that the happening of such an accident was possible, as indeed the occurrence’ itself demonstrates,' but the possibility was so remote and the process of reasoning from such cause to such effect would of necessity be so uncertain and vague, that the movement of the bucket must, be denominated a remote cause. Had the moving bucket struck plaintiff, while in a reasonably careful use of the street under.the circumstances, without the intervention ■ of another agency, a different question might be presented. It- is entirely unreasonable to -the ordinary mind to suppose that an accident of this character or any similar character would probably result from the combination of wagon and bucket liable to move and he tripped; and. this being so, liability.does not attach to the defendant.' -

■ The judgment should be reversed and a- new trial granted, costs to abide the event. . „

• Jenks, Gaynoband Milleb, JJ., concurred; Bich, J., dissented.

Júdgment and order reversed and new trial granted, costs to abide the event. . .  