Harton v. . Telephone Co.

Connor, J.,

dissenting: As this case goes back for a new trial, I do not care to discuss several of the interesting and difficult questions presented upon the record. I simply wish to say that I do not think plaintiff’s prayers for instructions could have been properly given, and that the instruction proposed to be given by His Honor was correct. The plaintiff should have proceeded with the trial and not have taken a voluntary nonsuit. In the light of the evidence, the sole question was whether the negligence of defendant was the proximate cause of the injury — and this His Honor proposed to submit to the jury. After correctly defining the measure of defendant’s duty in regard to securing the pole, after being notified of the dangerous condition in which it was left by working the road followed by the rains, His Honor said: “If you further find from the evidence that one Carpenter, admitted not to be an agent of the company, raised the pole from the ground and placed it in the hole where it had formerly been, and that thereafter the pole fell and injured plaintiff’s intestate, then the negligence of the defendant would not be the proximate cause of the injury.” This, I think, á correct instruction. It must be conceded, I respectfully submit, that if Carpenter’s act was the real, which *468 Is synonymous with proximate, cause of the injury, then the preceding and exhausted negligence of defendant could not be also and at the same time the real (proximate) cause thereof. It must be conceded that expressions may be found as cited by Mr. Justice ilolce, in which the existence of two proximate causes are recognized, as causing an injury. I must confess my inability to understand how two independent causes, acting and operating entirely independent of each other, can both be said to be the proximate cause of one injury. In a certain sense every event is the result, culmination of every precedent event, but for practical purposes, in the affairs of human life, there must be a limit found somewhere when the causal connection between events cease to be recognized for the purpose of fixing liability, otherwise we run into abstractions of the schoolmen and convert the courts into academies for speculation. I fully comprehend how two or more concurrent causes may co-exist and co-operate, but in the domain of practical jurisprudence before a legal liability can be fixed, a point must be reached at which, either as a legal conclusion or by the verdict of the jury, the ultimate causa causans is reached. In the case put by Mr. Barrows, cited in the opinion, as in all of the cases which I have examined, the negligent act, as leaving the horse unhitched in the street, was a continuing act of negligence, the dangerous consequences of which could be clearly foreseen. This is well illustrated by the decisions of this court in Greenlee's case, 122 N. C., 977 , and Troxler’s case, 124 N. C., 189 , in which it was held that the failure of the railroad company to provide safety appliances was negligence per se, and because continuing up to the moment of the injury and from long and uniform experience known to be imminently dangerous to human life it was treated, in the language of the court, as the "causa causans of the injury,” excluding the defense of contributory negligence. It is nowhere suggested that the negligence of the defendant' in not furnishing *469 the appliances and that of plaintiff in undertaking to do tbe work without them, were both proximate causes. This, it was evident to the court, would be to destroy the landmarks defining the doctrine of contributory negligence. Whatever may be thought of the scientific accuracy of the doctrine of continuing negligence, it is well- settled, with its limited application, in oxir jurisprudence. It simply excludes the defense of contributory negligence by treating the defendant’s continuing negligence as the proximate cause of the injury. In -the same way many cases may be found in the books wherein it is held that if one leave a dangerous object in the highway, under such circumstances that a reasonably prudent man would foresee that persons passing would interfere with it, causing injury, the original negligent act is treated as the proximate cause of the injury. In all of these eases the negligent act was continuing at the time of the interference. In Milwaukee, etc., R. R. v. Kellogg, 94 U. S., 469 , a well considered and uniformly approved opinion, it is said: “The question always is, was there an unbroken connection between the wrongful act and the injury — a continuous operation? Did the 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 the wrong and .the injury? It is admitted that the rule is of difficult application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. " * * We do not say that even the natural and probable consequences of a wrongful act or omission are, in all cases, to be chargeable to the misfeasance or non-fea-sance. They are not where there is a sufficient and independent cause operating between the wrong and the injury. In *470 tbe 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 natural or 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.”

In this case, the pole was down and across the road; the negligence of defendant had spent its force, was exhausted. Eor any injury sustained by a traveller by reason of its being across the road, defendant was liable. Carpenter came along and undertook to replace it. In such condition Mr. Bishop says: “The inadequate, remote cause, which is not sufficient to charge the party, we may define, to be one which has so far expended itself, that its influence in producing the injury is too minute for the law’s notice; or a cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof. If after the cause in question has been in operation, some independent force comes in and produces an injury, not its natural or probable effect, the author of the cause is not responsible.” Non. Con. Law, 43. This, I think, is the law applicable to this case, the question of fact being for the jury. I am unable to foresee where the doctrine of double or, possibly, triple proximate cause will lead us. It will become necessary for either the court or the jury to find which of the several proximate causes is most or nearest proximate to the injury — ultimately leading to the generally rejected doctrine, save in admiralty, of comparative negligence. In recognizing several proximate causes when inquiring into defendant’s negligence, it must follow that the same principle must be carried into the inquiry in regard to plaintiff’s negligence producing, I respectfully submit, additional confusion and uncertainty into a domain sufficiently beclouded with contradictory theories, abstract *471 speculations and confusing terminology. I think it much! safer to keep in view, and be governed by, the wise maxim via antigua via est tuta.

Walker, J., concurs in the dissenting opinion.