
    Railway Company vs. Staley.
    A railway company, by its train, unlawfully obstructed a village street. S., therefore, walked around the rear of the train, entered another street, and there, having selected one of several routes to her home, .■ slipped on some ice, fell, and sustained serious injury. The same railway company had placed the ice there in the process of clearing its track, which occupied part of the street. The street was laid out after the railway was in use, and the rights of the public in said street were subject to tbe rights of tbe railway company. .
    Held: 1. The proximate cause of the injury was the placing of the ice in the street.
    2. If the railway company was not in fault in so placing the ice, it was not liable for the injury caused by the fall.
    Error to the District Court of Warren County.
    On the 17th of January, A. D. 1877, a freight train of the Pittsburgh, Cincinnati & St. Louis Railway Company, bound east, went upon a side track at Morrow, Warren County, Ohio, at eight o’clock, R. m., and remained there until five minutes after nine o’clock. Although the train crossed Center street in the village, no cars were uncoupled and that street was completely blocked. The only reason for this was the expectation of the conductor that he would be ordered to move his train eastward at any moment. Mrs. Emily E. Staley, and others, resident in the village at points north of the railway, were in a church on Center street, one square south of the railway, when the train arrived. When the service ended they found the train blocking the street, and after waiting ten or fifteen minutes, they went to the west end (the rear) of the train, passed around the rear car, walked eastward between the tracks the length of three, or four cars, turned northward to cross another track of the railway, and as she was “just stepping off the last track” she slipped upon some ice piled there, fell and sustained serious injury to her “whole limb from the hip down.” She suffered much pain, was confined to her bed for a time, to her room for a longer time, and claimed that her health was permanently impaired. A number of other women pursued the same route, some before, some behind, and some with Mrs. Staley. None of them fell. The evidence showed that it was unnecessary for her to step upon the pile of ice on which she slipped and fell.
    The village of Morrow was laid out after the railway was in use, and one street called “ Railroad street ” included the railway tracks, and ran in the same direction with them. Snow fell and ice formed on the tracks in this street. The company to clear its tracks for the passage of trains, removed this ice and snow and cast it in the street on either side of the tracks. Mrs. Staley sued the company. The answer made the general issue. Evidence as to the manner in which the ice had been placed there was before the jury at the trial. The charge to the jury contained the following instruction: •
    “ But suppose the jury should find that there was negligence in the blocking of the street by the company, but none in the placing of the piles of dirt, ice or snow on or over which it is claimed the plaintiff fell without fault on her part in going that way, or in the mode of going ? what, then, is the law ?
    “ Here comes the difficulty in the application of the rule as to proximate or remote consequences.
    “ Undoubtedly injuries might have been received by her as she passed around the train, for which the company would not be liable. For instance, suppose as ■ she passed along, attempting to cross the road, she had been struck by a stone thrown by some ruffian. Clearly she would not thus have been injured if she had not gone by that route, but it is equally clear that this injury would not be one for which the company was liable.
    “But suppose the injury results - while so prudently and carefully passing around by some other instrumentality placed or maintained there by the defendant. I confess that I have great difficulty in arriving at a conclusion on this point.
    “ The law seems to me to be this: ‘ That if the original act (in this case the blocking of the street) was wrongful, and would naturally, according to the ordinary course of events prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent.’ And an-illustration of this doctrine given in the law books is the wrongful throwing" of a lighted squib, which being innocently warded off by several persons, at last struck and put out the eye of another person. The original thrower was held liable. Now it seems to me that the question whether the injury in this case to Mrs. Staley was the proximate result of the original blocking of the street, is one not to be settled by the court, but by the jury under appropriate instructions from the court. And I say to you that if the evidence shows that prior to the time in question, the agents and servants of the company were in the habit, frequently, of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highway substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine, under such circumstances, whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might, and there was no fault on the part of the plaintiff, the company in that would be liable.
    “But that if there was no such reason to apprehend the result, I say to you that it would not be the proximate result of the original act.”
    The verdict was for the sum of $1,625, in favor of the plaintiff. A motion for a new trial was overruled and a bill of exceptions, containing all the evidence, duly made part of the record.
    Nineteen errors were counted on in the petition in error. The seventeenth complained of the charge. The district court affirmed the judgment of the common pleas, and we are asked to reverse the judgment of both courts. Other parts of the charge and several refusals to charge as requested by the defendant, were also duly excepted to and assigned for error.
    
      Charles Darlington, for plaintiff in error.
    
      The fact that Railroad street was laid out with the railroad on it, and subject to the right of the company to operate its trains along the street, gives to the company the right to remove the dirt, snow and ice in the manner and for the purpose stated. Short v. R’y. Co., 50 Md., 73. The placing the snow and ice on the street was the proximate cause of the injury. Daniels v. Ballantine, 23 Ohio St., 538. Cooley on Torts, 68, 69, 70; Tisdale v. Inhabitants of Norton, 8 Met., 388. The proximate cause being lawful there is no redress for the injury.
    
      J. D. Wallace and J. F. Smith, for defendant in error.
    The blocking of Center street by the train was unlawful and was the proximate cause of the injury. Billman v. R'y. Co., 76 Ind., 166; Addison on Torts, § 12; Beauchamp v. Saginaw Mining Co., 50 Mich., 163; Clark v. Chambers, 7 C. L. J., 11; Thomas v. Winchester, 6 N. Y., 397; Richter v. Freeman, 50 N. H., 420; Griggs v. Fleckenstein, 14 Minn., 81; Weick v. Lander, 75 Ill., 96 ; Powell v. Deveny, 3 Cushing, 300; McDonald v. Snelling, 14 Allen, 290; Lane v. Atlantic Works, 111 Moss., 136; 109 Id., 277; 59 Ill., 349; 118 Mass., 251; 2 Thompson’s Negl., 1083; 56 N. Y., 200; 80 N. Y., 212.
   Granger, C. J.

We are satisfied that the railway company violated section thirty-one (31) of the act relating to roads and highways, passed March 9,1868, (S. &. S., 669,) and thereby became “liable for all damages arising to any person from such obstruction.”

Counsel upon both sides have aided the court by able and carefully prepared arguments citing and commenting upon the numerous cases in which the question “ What was the proximate cause of the injury? ” has been discussed by American and English courts.

Judge Cooley, at page 69 of his work on Torts, thus briefly states the test:

“If the wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are hot sufficiently conjoined or concatenated, as cause and effect, to support an action.”

Apply this to the noted “ Squib ease,” Scott v. Shepherd, 2 W. Bl., 892. As soon as the fire reaches the explosive material in the squib an explosion naturally and usually follows. If, when thrown, it falls so near a person, that, to pick it up and cast it hurriedly elsewhere is the obvious means of escape from harm, such action naturally, and, we may add, usually follows. If this thus occurs in a crowded market space, the natural and usual result would be injury to some one other than the person at whom it was first' thrown. So long as the act of the second thrower is the result of mere impulse to avert danger to himself by removing the dangerous thing to a distance, the first thrower’s act is in progress. But if the second thrower deliberates, even for a mere instant, and, with intent to injure a third person, casts the squib at him, such deliberation and intent puts an end to the act of the first thrower, and the thing done by the second thrower is not his fault.

So also if a wholesale druggist prepares a jar of belladonna, labels it “ extract of dandelion,” and sells it as such to a retail dealer, who uses it as “ extract of dandelion ” in filling a prescription: the great suffering of the patient, who takes the medicine so prepared, is plainly the natural and usual result of the act of the wholesale dealer. In the case referred to, the defendant prepared the jar to be sold to a retailer whose regular business it was to incorporate it in prescriptions to be swallowed by patients. The “ concatenation ” of Judge Cooley is particularly complete in this case of Thomas v. Winchester, 6 N. Y., 397.

In Clark v. Chambers, 7 Cen. L. J., 11, the defendant wrongfully placed a dangerous spiked hurdle in a private way, along which the plaintiff had a right to pass. Some person, without the defendant’s knowledge, moved it a short distance, but left it still in the same private way. The plaintiff passing on a dark night, with knowledge of the original position of the hurdle, thinking to avoid it, came into collision with it and was injured.

Having unlawfully placed the dangerous movable thing in a passage-way, so long as it remained in that way, it was there by the defendant’s act. That such a movable thing in such a place would be moved by some passer-by, is, it seems to us, natural and not unusual; and he who originally placed it there should be held to contemplate such a possibility, and be responsible for results so long as he suffers it to remain in that way.

And we see Judge Cooley’s “ concatenation ” in Griggs v. Fleckenstein, 14 Minn., 81, and Weick v. Lander, 75 Ill., 93. The injury complained of in each of these cases, by a plain, clear and simple chain of cause and effect was “ conjoined” to the wrongful act' of the defendant, and was the result of its continuing force. In the Minnesota case the action of the defendant’s team frightened other horses and, we may well say, forced them against the horse and sleigh of the plaintiff. In the Illinois case the stoppage of the foremost wagon by defendant’s fault forced the stoppage of the second wagon in such a position that the tongue of the third wagon, ex necessitate, passed into the second wagon and did the injury complained of. The like continuing force of the wrongful act is apparent in Brown v. The Railway, 54 Wis., 342, and Drake v. Kiely, 93 Penn. St., 492.

In the Wisconsin case the wrongful act caused a pregnant woman to leave the train three miles short of her destination on a,cloudy night. This act forced her to walk to the station. This effort caused the injury.

In the Pennsylvania case the “lad of tender age” was' wrongfully and forcibly put upon a train, carried five miles and there put off. This act forced him to go over the five miles. The doing this caused the injury. In each case the precise thing that did the injury was forced upon the injured person by the wrongful act of the defendant.

But the fact that she walked around the train was not the cause of Mrs. Staley’s injury. Other persons that night walked ■ around the same train without harm. In the full possession of her faculties, she passed safely around the obstruction and beyond its influence; she was walking in a street in which others were then safely walking; she stepped upon a small pile of ice without necessity. She could, at will, have gone on either side of it; she might have, walked between the rails of the unoccupied track, from which the snow and ice had been removed, until she arrived at the usual crossing of Center street, from which the train (before she passed around it) had excluded her. The turning to cross that track in order to there cross the street was a voluntary act on her part. It was a selection of one of several convenient routes to her home. We are unable to see any chain of cause and effect leading back from it to the obstructing train. True, if the train had not blocked the way, she would not probably have been at the turn in Railroad street at the point where she decided to cross that street; but so long as the obstructing train did not compel her to take that precise route, and step on that pile of ice in order to reach her home without undue delay, her decision to there attempt to cross that street was in no sense, in no particular, forced by that train; hence it did not cause her fall.

The charge attempted to trace a possible “ concatenation ” of cause and effect by stating “ that if the evidence shows that prior to the time in question, the agents and servants of the company were in the habit frequently of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highways substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine under such circumstances whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might, and there was no fault on the part of the plaintiff, the company in that would be liable.”

As no evidence tended to show that prior to that night any one fell while passing there, we do not perceive how knowledge by the company that people were in the habit of following the route taken by her, without any fall or injury, would make her fall a “ usual and natural ” result of the obstruction of Center street by a train; or that such fall “ might reasonably be anticipated by the company.”

It seems to us that unless the company was at fault in placing the ice where she trod upon it and fell, no verdict ought to have assessed upon the defendant any damages for that fall.

While we thus hold that the pile of ice was the proximate cause of Mrs.. Staley’s fall, we agree with the cases cited by her counsel, that in such cases “ the question as to whether the cause was remote or proximate is for the jury, under the instruction of the court.” But we think that the charge as given misled the jury, and that the evidence, as set out in the bill of exceptions, clearly proves that the act of stepping on the ice where she fell was not forced by the train, but was the result of her own choice of route after the train had ceased to be an obstruction to her. The court should apply the law to those facts; and as we understand it, such application determines that the position of the train was not the proximate cause of the fall.

A demurrer to the petition raised the question whether the latter charged the company with any fault in the matter of the ice. Perhaps it may be construed as averring, in substance, that the blocking of the street compelled her to step upon the ice placed by the defendant, and that while so stepping, under such compulsion, she, without her own fault, fell. If this be so, the demurrer was rightly overruled.

We deem it unnecessary to consider the other alleged errors.

Judgments below reversed, and cause remanded for a new trial.  