
    VANCE PAUL v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 1 December, 1915.)
    1. Railroads — Escaping Steam — Frightening Horses — Negligence—Evidence— Trials — Questions for Jury.
    In an action to recover damages of a railroad company for an injury inflicted by reason of tbe plaintiff’s mule becoming frightened by the defendant’s locomotive, evidence tending to show that the mule became frightened at the steam arising from the locomotive in starting it, that the steam complained of was usual, in such instances, and not caused willfully or wantonly, is not sufficient to take the case to the jury upon the question of defendant’s negligence.
    2. Negligence — Proximate Cause.
    Negligence to be actionable must be the proximate cause of the injury for which damages are sought.
    8. Same — Trials—Evidence—Questions for Jury.
    Ordinarily the question of proximate cause of an injury arises from the evidence as an issue of fact for the jury under proper instructions, and not solely as a matter of law.
    4. Same — Continuing Cause — Independent Cause — Concurring Cause.
    Where a railroad company has blocked the street of a town in violation of an ordinance, and, in consequence, one driving a mule has driven to another crossing, and there his mule became frightened by steam escaping from a locomotive on the track of the same company and causing injury, in his action to recover damages therefor it is held that the escaping steam, while in itself affording no evidence of negligence, concurred with the continuing negligence of the defendant in blocking the street, but not as an independent or intervening cause; and that the conditions being within the knowledge of the defendant, the negligent act was the proximate cause of the injury, being that without which it would not have occurred; and that under the evidence of this case an issue as to defendant’s actionable negligence was properly submitted to the jury.
    5. Torts — Tort Eeasors — Anticipated Consequences.
    The rule holding the tort feasor liable for his act does not require that the particular injury complained of must be foreseen or anticipated by him, but that some injury may follow the wrongful act.
    Walker and Brown, JJ., dissenting.
    
      Appeal by defendant from Allen, J., at April Term, 1915, of Oum-BERLAND.
    Action for tbe recovery of damages for personal injuries, alleged to have been caused by the negligence of the defendant.
    The plaintiff’s evidence tended to show — the defendant not having introduced any evidence — that the plaintiff, a white man about 35 years old, with one Hagan, drove a mule, hitched to a buggy in which they were riding, into the town of Parkton, about 2 o’clock in the afternoon of 26 January, 1914. Desiring to go on the east side of the defendant’s track, they found some of the street crossings blocked by a freight train. The plaintiff got out of the buggy and walked around the train, and, after transacting certain business, came back to the buggy. They then drove to the upper northernmost crossing, and, finding that one blocked, drove down a street parallel to and fifteen feet from the train for a distance of about four hundred-yards, with the purpose of going to a lower crossing, which was not blocked. Just as they reached the engine — the train being headed south — steam came out from under the engine and the wheels began to turn, searing the mule, causing him to run away, and plaintiff was thrown out of the buggy, suffering injuries.
    There was no evidence that the escaping steam was unusual or extraordinary, or that the escape was permitted willfully or wantonly, and the noise and escape of steam was usual and ordinary in the starting of a train. There was in evidence an ordinance of the town of Parkton which provided a penalty for a railroad to block the street for more than five minutes, and also evidence that the streets had been blocked for a longer time than five minutes.
    The defendant introduced no evidence and moved for judgment as in case of nonsuit. This motion was overruled and defendant excepted. There was a verdict and judgment for the plaintiff, and the defendant appealed.
    
      Sinclair, Dye & Bay for plaintiff.
    
    
      Bose & Bose for defendant.
    
   AlleN, J.

It is established by the evidence that the defendant blocked a public crossing in the town of Parkton with a train of cars in violation of the ordinance of the town, and this is negligence; but a plaintiff cannot recover upon proof of negligence alone. He must go further and show that the negligence complained of is the proximate cause of his injury. Ledbetter v. English, 166 N. C., 125; McNeill v. R. R., 167 N. C., 390. The real controversy, therefore, between the plaintiff and the defendant on the issue of negligence, raised by the motion for judgment of nonsuit, is whether there is any evidence that the negligence of tbe defendant in violating tbe ordinance of tbe town was tbe proximate cause of tbe injury.

Mucb of tbe difficulty in tbe application of tbe doctrine of proximate cause arises from tbe effort on the part of tbe courts to give legal definition to wbat is essentially a fact, and, in most cases, for tbe determination of a jury, but perhaps tbe most complete and accurate statement of tbe rule is to be found in tbe oft quoted opinion of Mr. Justice Strong in R. R. v. Kellogg, 94 U. S., 469. He says: “Tbe true rule is, that wbat is tbe proximate. cause of an injury is ordinarily a question for tbe jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of tbe circumstances of fact attending it. Tbe primary cause may be tbe proximate cause of a disaster, though it may operate through successive instruments, as an article at tbe end of a chain may be moved by a force applied to tbe other end, that force being tbe proximate cause of tbe movement, or, as in tbe oft cited case of tbe squib thrown in tbe market place. 2 Bl. Rep., 892. Tbe question always is, "Was there an unbroken connection between tbe wrongful act and tbe injury, a continuous operation? Did tbe facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between' tbe wrong and tbe injury? . . . We do not say that even tbe natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between tbe wrong and the injury. In such a case tbe resort of tbe sufferer must be to tbe originator of tbe intermediate cause. But when there is no intermediate efficient cause, tbe original wrong must be considered as reaching to tbe effect, and proximate to it. . . . In tbe nature of things there is, in every transaction, a succession of events more or less dependent upon those preceding, and it is tbe province of tbe 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 tbe circumstances existing at the time.”

Again, tbe same judge says in Insurance Co. v. Boone, 95 U. S., 117: “Tbe proximate cause is tbe dominant cause, not tbe one which is incidental to that cause, its mere instrument, though tbe latter may be nearest in time and place. Tbe inquiry must always be whether there was an intermediate cause disconnected from the primary fault and self-operating, which produced tbe injury.”

In Harvell v. Lumber Co., 154 N. C., 261, this statement of tbe law was approved, tbe Court saying: “Proximate cause means tbe dominant, efficient cause, tbe cause without which tbe injury would not have occurred; and if tbe negligence of tbe defendant continues up to tbe time o£ tbe injury, and tbe injury would not baye occurred but for sucb negligence, it is not made remote because some act, not witbin tbe control •of tbe defendant, and not amounting to contributory negligence on tbe part of tbe plaintiff, concurs in causing tbe injury.”

Another definition of tbe term is tbat given by Shearman and Redfield on Negligence, see. 26, and approved in Harton v. Telephone Co., 141 N. C., 455, and in Ward v. R. R., 161 N. C., 184, tbat “Tbe proximate cause of an event must be understood to be tbat which, in natural and •continuous sequence, unbroken by any new and independent cause, produces tbat event, and without which such event would not have occurred. Proximity in point of time and space, however, is no part of tbe definition.”

If either of these authorities is followed tbe question of proximate cause was for tbe jury, because tbe “facts constitute a continuous succession of events so linked together as to make a natural whole”; tbe escape of steam was not “disconnected from tbe primary fault,” but operating with it; tbe negligence of the defendant in violating tbe ordinance was "“the cause without which tbe injury would not have occurred.”

Tbe defendant contends, however, tbat these principles have no application to this case because, be says, the evidence shows tbat there was a new intervening cause, tbe escape of tbe steam, which was not negligent, and tbat this was tbe reaP cause of tbe injury to tbe plaintiff. There are two answers to this position. Tbe first is, tbat tbe escape of tbe steam did not intervene between tbe negligence of tbe defendant and tbe injury to the plaintiff, but was concurrent. Tbe train of -the defendant was still blocking the crossings»in violation of tbe ordinance ■of tbe town at the time tbe steam escaped, and tbe negligence of tbe defendant was then existing and operating.

Tbe second is, tbat tbe escape of tbe steam was tbe act of tbe defendant and,.while innocent witbin itself, was associated and connected with tbe negligence of tbe defendant, and was permitted by tbe defendant with a knowledge of tbe conditions surrounding tbe plaintiff.

Some of tbe authorities bold tbat no cause can operate as an intervening cause and thereby insulate tbe previous negligence of the defendants unless it is wrongful (Shearman and Redfield. on Negligence, sec. 36), but tbe better rule and tbe one generally adopted is tbat to have this ■effect it must be disconnected from tbe negligent act, and must be a •cause which could not be reasonably foreseen or anticipated. Harton v. Telephone Co., 141 N. C., 455; Ward v. R. R., 161 N. C., 183; 29 Cyc., 499; R. R. v. Renny, 42 Md., 137; Shippers Co. v. Davidson, 35 Tex. Civ. App., 561; R. R. v. Webb, 116 Ga., 152; Pastene v. Adams, 49 Cal., 87; Grimes v. R. R., 3 Ind. App., 576; Chacy v. City of Fargo, 5 No. Dak., 176; Osburn v. Vandyke, 113 Iowa, 558; Cornelius v. Huttman, 44 Neb., 447; Gas Co. v. Getty, 96 Md., 685.

As illustrating tbe rule, it was held in the Gas Co. case that one who-had put a defective gas pipe in a house was liable for an injury caused by an explosion which was brought about by a policeman going in with a lighted candle to investigate; in the Osburn case, that one who was-wrongfully beating a horse when his foot slipped, causing him to miss his blow and strike the plaintiff, was liable; in the City of Fargo case, that the city was liable to one injured by a hole in the street across-which there was a plank, and where the injury was caused by one riding-a bicycle striking the plank as the plaintiff passed, thereby injuring-him; and, in the case from G-eorgia, that the plaintiff was entitled to-recover damages against a railroad company which, by its negligence,, had caused him to be thrown from a train on which he was a passenger, thereby throwing him upon a track where he was injured by a train of another company using the track without negligence on its part.

The case of R. R. v. Benny, 42 Md., is particularly pertinent to the position that the defendant cannot by its own act relieve itself from the consequences of its negligence.

The Court says in that case: “In the application of the maxim, In jure non remota causa sed próxima spectatur, there is always more or less difficulty, and attempts are frequently made to introduce refinements that would not consist with principles of rational justice. The law is a practical science, and courts do not indulge refinements and subtleties as to causation that would defeat the claims of natural justice. They rather adopt the practical rule, that the efficient and predominating cause in producing a given event or effect, though there-may be subordinate and dependent causes in operation, may be looked to in determining the rights and limitations of the parties concerned. . . . But it is equally true that no wrongdoer ought to be allowed to apportion or qualify his own wrong, and that, as a loss has actually-happened whilst his wrongful act was in force and operation,, he ought not to be permitted to set úp as a defense that there was a more immediate cause of the loss if that cause was put in operation by his own wrongful act.”

The ease from Texas is in principle practically identical Avith the one before us. In that case the defendant had obstructed a street by erecting a gangway thereon, leaving a space for the passage of vehicles, and a horse of the plaintiff, while he was driving along the street, was frightened by the noise made by an employee in rolling cotton upon the gangway, and ran away and seriously injured the plaintiff. The objection was made to a recovery that the gangway did not cause the injury and that the noise made by the employee was an intervening proximate cause, but the Court said: “The act of moving the truck rapidly down the gangway, producing the noise that frightened the horse, was inseparably connected with the unlawful structure. It required the gangway as well as tbe moving of tbe truck to produce tbe result. Tbey were active concurring forces 'producing tbe result. Tbe intervening act of tbe negro in rolling tbe truck immediately behind tbe buggy and frightening the horse did not supersede tbe original unlawful act in, putting tbe obstruction in tbe street.”

If these principles are applied to tbe evidence, we are of opinion that there was no intervening cause and that tbe motion for judgment of nonsuit was properly denied, and if we discard legal definition, and take a practical, reasonable view of tbe evidence, tbe same conclusion will, be reached.

If you were to ask a reasonably intelligent person, “Would tbe plaintiff have been injured but for tbe escape of steam?” be would answer “No,” but if you asked the same person, “Would be have been injured if tbe defendant bad not negligently blocked tbe crossing?” be would give you tbe same answer, and this would seem- to demonstrate that tbe concurrence of tbe two acts of tbe defendant (one negligent and tbe other within itself innocent) caused tbe injury, and, if so, tbe defendant cannot escape liability unless tbe plaintiff was guilty of contributory negligence. “Negligence, to render a person liable, need not be tbe sole cause of an injury. It is sufficient that bis negligence, concurring with one or more efficient causes other than plaintiffs fault, is tbe proximate cause of tbe injury.” 29 Cyc., 497.

The negligence of tbe defendant continued and was in operation up to tbe very time of tbe injury, and, not only could tbe defendant have reasonably foreseen and anticipated what did occur, but it bad actual knowledge of conditions up to tbe time tbe mule began to run.

It knew that it was violating an ordinance and, therefore, guilty of negligence; that tbe plaintiff, in tbe exercise of a right, bad approached tbe crossing and was endeavoring to pass; that be was prevented from doing so by its negligent act; that be was trying to extricate himself from tbe condition and situation_produced by tbe defendant; that be was passing tbe engine in bis effort to do so, and that it was permitting tbe steam to escape from its engine in tbe direction of tbe mule, which was not more than ten or fifteen feet distant, and tbe only facts which it did not know were that tbe mule would run away and that tbe plaintiff would be thrown out, and it was for tbe jury to say whether this result could be reasonably anticipated.

Tbe rule is not that tbe particular injury must be foreseen or anticipated, but that some injury may follow tbe wrongful act. Drum v. Miller, 135 N. C., 213.

Tbe qiiestion of contributory negligence was submitted to the jury under proper instructions, and it could not have been declared as matter of law under tbe evidence in tbe record. Dunn v. R. R., 126 N. C., 343.

There are several exceptions taken by tbe defendant, but tbe principles we bave discussed cover all of them that are relied on in tbe defendant’s brief.

No error.

Walker and Brown, JJ., dissenting.  