# Johnson v. Kosmos Portland Cement Co.

> Court of Appeals for the Sixth Circuit · March 17, 1933 · 64 F.2d 193

URL: https://www.frixlaw.com/law-library/cases/9644196

## Case

- **Full name:** JOHNSON Et Al. v. KOSMOS PORTLAND CEMENT CO.; SAUER Et Al. v. SAME
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** March 17, 1933
- **Citations:** 64 F.2d 193; 1933 A.M.C. 1023; 1933 U.S. App. LEXIS 4047
- **Precedential status:** Published
- **Opinion:** Dissent by Moorman
- **Judges:** Simons, Moorman, Hicks, Sim-Ons
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644196

## Opinion text

MOORMAN, Circuit Judge
(dissenting).
In my opinion the application of the correct rule of proximate result to this case requires an affirmance. Had the gas exploded spontaneously, there would be an unbroken chain between the negligence and the injury. Had it attracted the lightning, the chain of causation would still he complete. In either case the explosion would be the direct or, as sometimes said, the natural consequence of the defendant’s negligence, and thus the proximate result. But the factual ease is different. The g-as was inactive or dormant, and a new outside force intervened and caused the explosion. This seems to me to make the defendant’s negligence remote unless it created a situation, where there was foreseeable danger of the intervention of, the new force. Beale, The Proximate Consequences of an Act, 33 Harvard Law Review 632. I think the danger was not foreseeable. Thunderstorms, it is true, do come, lightning does strike, a,nd men do take out insurance against these risks. So do men run trains into open switches (Pere Marquette Ry. Co. v. Haskins, 62 F.(2d) 806 (6 C. C. A.) and automobiles into railway ears standing on highways (Orton v. Pennsylvania R. Co., 7 F.(2d) 36 (6 C. C. A.). Many tilings happen that reasonable foresight cannot anticipate; and so it is that a foreseeable thing is not that which has happened or may happen again but which “could reasonably have been foreseen in the light of all the attending circumstances.” I think a stroke of lightning is beyond the scope of this expectation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644196. Public record. Not legal advice.