Opinion
6 Div. 890.
May 1, 1919.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
V. J. Nesbit, of Birmingham, for appellant.
Beddow Oberdorfer, of Birmingham, for appellee.
The report of this appeal will show count 4 of plaintiff's (appellee's) complaint.
Plaintiff was an electrician's helper in defendant's mine. John Green, plaintiff, and another, were going on an electrically drawn empty coal car, an ordinary coal car, to repair the trolley wire at a point indicated as entry 44 East. At that point an electric light illuminated the surroundings. About 50 yards before the car reached the light John Green, alleged to be a person in the employment of defendant to whose order plaintiff was bound to conform (Code, § 3910, subd. 3), said: "Throw off your tools where the light is; that is where we get off." This was the order on which plaintiff counted. At the point designated plaintiff threw off his bag of tools, and himself safely alighted from the car, and was walking along by the side of it. At that time the car was moving about as fast as a man could walk, and thereafter came to a stop in about a car length. In the meantime, however, John Green attempted to alight from the car; but an iron bolt, projecting about an inch above the surface of the car, caught in his clothing, so that he was unable to alight immediately and was carried along until his body came into contact with plaintiff, knocking him down, whereby one of his feet was caught beneath a wheel of the car and injured.
If it be conceded that questions whether the order to alight from the car may have been properly accepted as an order to alight while yet the car was in motion, whether plaintiff was bound to conform to the orders of John Green, and whether in general the order was negligently given raised issues necessary to be submitted to the jury, we are of opinion that it cannot be said that plaintiff's injury resulted in a legal sense proximately from the order. The order, as far as it went, was safely executed; but the event disclosed the fact that, upon the concessions stated above, it placed plaintiff in a situation where he was injured as the result of a most extraordinary sequence of events. In order to fix defendant's liability it must appear — the evidence must afford reasonable warrant for a finding — that, as in broad terms the rule is generally stated, plaintiff's injury flowed in natural and continuous sequence from the negligence charged. Mr. Street, in his work on the Foundations of Legal Liability, affirms that the question whether damage claimed is proximate or remote, recoverable or nonrecoverable, "is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent. * * * The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other." Vol. 1, p. 110. However, as noted in Briggs v. B. R., L. P. Co., 188 Ala. 262, 66 So. 95, this court, following substantially the text of 1 Shearman Redfield on Negligence (6th Ed.) § 29, where the rule is stated as the necessary result of the latest and best decisions, has adopted the following formula of practical utility:
"A person guilty of negligence is responsible for all consequences which prudent and experienced men, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind." Armstrong v. Montgomery Ry. Co., 123 Ala. 233, 26 So. 349.
The connection between the negligence charged and the injury suffered may be broken by an intervening cause, and such connection is to be considered as broken if the intervening event is one which, in the natural and ordinary course of things, may not be reasonably anticipated. 1 Shear. Redf. § 32. These attempts at definition may appear to define the proximity of a result by reference to the elements of the negligence from which the result is alleged to have flowed; but that seems unavoidable in any definition capable of practical use in trial courts; and in so philosophical a work as Pollock on Torts we find the author discussing the question of proximate or remote cause and making useful reference to Blyth v. Birmingham Waterworks Co., 11 Ex. 781, though himself noting the fact that the question there was not really one of remoteness of damage, but whether there was any evidence of negligence at all. Pollock on Torts, 42. The case to which he thus refers was quoted in Southern Railway Co. v. Carter, 164 Ala. 103, 51 So. 147, to this effect, in part:
"If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all."
The same case was twice cited in Matson v. Maupin, 75 Ala. 312. Our conclusion, on what appears to be the common sense of the issue raised in the present case, is that the proximate or effective legal cause of what happened to plaintiff, after he had executed the alleged order of Green, is to be found in what happened to Green, an extraneous accident whereby he was made an involuntary agent in the infliction of an injury of a kind he had no reason to foresee; and that, therefore, there was shown no proximate causal connection between Green's order and plaintiff's injury, and defendant was entitled to the general charge on the fourth count, as requested.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.