
    Motz v. City of Akron et al.
    
      Negligence — Demurrer to petition — Facts alleged assumed true and reasonable inferences deducible therefrom established —Proximate cause, question for jury — Original wrong considered proximate cause in absence of intermediate efficient cause — Liability of municipal corporation — Volunteer injured while extricating horse from ditch in street — Original wrongdoer not excused by act of third person, when.
    
    1. In passing on judgment overruling demurrer to petition, reviewing court must assume that facts alleged therein were true and all reasonable inferences to be deduced therefrom were established.
    2. What is proximate cause of injury is ordinarily question for jury, court instructing as to what law requires to constitute it, and jury applying law to facts.
    3. Where there is no intermediate efficient cause, original wrong must be considered as reaching to effect, and proximate to it; “proximate cause.”
    4. Where intervening efficient cause is relied on, it is ordinarily question for jury whether it was intervening efficient cause such as would prevent negligence charged from being proximate cause.
    5. Petition alleging that horse fell into ditch in street, and that plaintiff was injured in extricating it, held to raise jury question whether there was. intervening cause which prevented negligence in maintenance of street from being proximate cause of injury.
    6. Where it cannot be said that only one inference can be drawn from facts and circumstances, question is for jury.
    7. One is liable for natural and probable consequences of his negligence, and act of third person intervening and contributing condition necessary to injurious effect of original negligence will not excuse first wrongdoer.
    8. Whether first wrongdoer should have foreseen that act of third person intervening and contributing condition necessary to injurious effect of original negligence is for jury.
    (Decided June 1, 1926.)
    
      Error: Court of Appeals for Summit county.
    
      Messrs. Sheck & Stevens, for plaintiff in error.
    
      Mr. H. M. Hagelbarger, director of law, Mr. W. A. Kelly, and Messrs. Rockwell & Grant, for defendants in error.
   Washburn, J.

The only question presented for determination in this proceeding in error is whether or not the trial court was justified in determining that the claimed negligent acts set forth in the petition were not the proximate cause of the injuries complained of therein.

The question was raised by a demurrer to the petition; the demurrer being based on the claim that the petition did not state facts sufficient to constitute a cause of action.

For the purpose of passing upon the question presented, we must assume that the facts alleged in the petition are true, and that all reasonable inferences to be deduced therefrom have been established.

It seems that the city of Akron determined to construct a sewer in one of its streets, and, by arrangement with Hollinger & Davidson, the other defendants, a trench was dug in the street, within the main traveled portion of the same, and that, after the ditch had been refilled with loose dirt, it was flushed with water and left in a soft and muddy condition, without lights or guards or warnings of any kind; that one James McGowan was driving his horse along the street, and the horse fell into the ditch, and, being unable to extricate itself, certain firemen of the city and others volunteered to assist in getting the horse out of the ditch; that during said procedure, the plaintiff, being requested so to do, was holding the head of said horse as he was being lifted from the ditch, and, when said horse had been so lifted, and his hoofs were on a level with the ground surrounding said ditch, the horse lunged and kicked, and by reason of such lunging and kicking upset the derrick which had been used to extricate him, thereby causing a four-inch pipe, constituting a part of said derrick, to strike plaintiff on the right side of his jaw and severely injure him.

The negligence charged against the defendants was the failure of the defendants to guard the excavation with barriers and lights and warnings to warn pedestrians and drivers of vehicles upon the street of the presence of said ditch or dangerous condition, and also the use of a derrick which was unsafe and unsound, and which, by the lunging and kicking of the horse, broke, and injured the plaintiff. It is charged that such negligent acts caused the injuries to plaintiff of which complaint is made.

As has been said, the court determined that there was no causal connection between the negligent acts complained of and the injury.

The general rule is that what is the proximate cause of an injury is ordinarily a question for the jury; the court instructing the jury as to what the law requires to constitute it, and the jury applying the law. to the facts. The question as to what is the proximate cause of an injury is ordinarily not one of science, nor of legal knowledge, but one of fact, for the jury to determine in view of the accompanying circumstances.

With regard to the province of the jury, the question of proximate cause is much the same as it is respecting the question of negligence.

“The courts have sometimes used such broad language as to the necessity of leaving the question of negligence to the jury that it might be inferred that every case must be so left; but this is not true. When the facts are clearly settled, and the course which common prudence dictated can be so clearly discerned that only one inference can be drawn, it is not only the duty of the court to set aside a verdict contrary to such evidence, but to take the case away from the jury and direct a verdict or a nonsuit, as the case may require.” Shearman and Redfield on Negligence, Vol. 1, Section 56.

But the difficulties surrounding the question of proximate cause “are often so great that the courts are unable to arrive at a conclusion which can be safely stated, as a matter of law, to govern future cases, even upon undisputed facts. They therefore prefer to leave the decision of such cases to a jury, which, if it decides erroneously in the particular case, will at least not prejudice the rights of any future litigant; whereas one erroneous decision of the court * * * may throw a whole department of law into confusion and injuriously affect hundreds of persons before it can be corrected.” Shearman and Redfield on Negligence, Vol. 1, Section 55.

Where there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it, and, where an intervening efficient cause is relied on, it is ordinarily a question for the jury whether there was such an intervening efficient cause as would prevent the negligent act or omission of the defendant from being the proximate cause of the injury.

“The inquiry must therefore always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Here lies the difficulty. But the inquiry must be answered in accordance with common understanding. * * * In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.” Milwaukee & Saint Paul Ry. Co. v. Kellogg, 94 U. S., 469, at pages 475 and 476 (24 L. Ed., 256).

See, also, Harriman v. P., C. & St. L. Ry. Co., 45 Ohio St., 11, 12 N. E., 451, 4 Am. St. Rep., 507.

We have carefully considered the allegations of the petition in this case, and we think that the question of whether or not there was an efficient intervening cause, which prevented the defendants’ negligent acts from being the proximate cause of the injury to the plaintiff, was one for the jury to determine — in other words, that it cannot be said that only one inference can be drawn from the facts and circumstances; that the court was not justified in saying, as a matter of law, that there was an efficient intervening cause which prevented the defendants’ act from being the proximate cause of the injury.

The horse in the ditch is naturally and probably connected with the failure to guard and protect the ditch, and a jury might find that according to the usual experience of mankind it ought to have been apprehended that if the horse got into the ditch some one would try to get him out, and that in doing so the horse might lunge and kick and injure some of those engaged in the rescue; one is liable for the natural and probable consequences of his negligent act, and 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, and whether or not it ought to have been foreseen is a question for the determination of a jury, unless it clearly appears that no reasonable person ought to have anticipated such a result, and in this case we do not find that it so clearly appears that the result claimed should not have been anticipated as to warrant the court in determining that as a matter of law there was no causal connection between the negligent acts of defendants and the injury to plaintiff.

The judgment, being contrary to law, is reversed, and the cause remanded.

Judgment reversed and cause remanded.

Pardee, P. J., and Funk, J., concur.  