damages for personal injuries, resulting from a seven-year-old boy having come in contact with an uninsulated wire of defendant. It appears that the wire was some 8 or 10 feet above the sidewalk, and was connected with an electric light suspended from the bar of an awning; that the boy had climbed up a pole supporting the awning, and, while walking along a horizontal bar, had come in contact with the wire. There was evidence that the boys of the neighborhood, including plaintiff, had been forbidden to climb the pole, and there was no evidence that defendant had actual knowledge that they did so. It was held that under these circumstances there could be no recovery. Mr. Justice Brown said (p. 158): "If the defendant company ought contributing to the injury. Can it be said in the present case that appellant ought to have reasonably anticipated that any person upon the ground would come in contact with its electric wires carried at a height of 29 feet in the air, and 12 feet distant from the building? Was it bound to foresee that appellee's husband would attach a wire to the flagpole 12 feet away, and then walk out into the street under the wires, and pull upon the small wire in his hand until he had drawn it over the intervening distance, and brought it in contact with, or in close proximity to, the overhead electric wire? If not, then it follows, under what may properly be regarded as the well-settled doctrine of our cases, that there can be no recovery by plaintiff, and that judgment should have been en- reasonably to have anticipated contact with tered for the defendant. Thus, in Trout v. Philadelphia Electric Co. 236 Pa. 506, 42 L.R.A. (N.S.) 713, 84 Atl. 967, 968, it appeared that a thirteen-year-old boy was endeavoring to detach a kite from an electric wire on which it had been caught, when he received a shock which resulted in his death. The wire was stretched upon poles, at a distance of about 4 to 6 inches from the outside edge of the cornice of the house. The boy lay down on the cornice and threw a corncob tied to the end of a string over the electric wire and pulled it toward him. When the wire came within reach he touched it, and immediately received the electric shock. This court, speaking through Mr. Justice Moschzisker, said (p. 509): "The act of the boy in getting hold of the wire was wholly unrelated to any act of the defendant in connection therewith. Had the wire been so close to the house that the boy might naturally have come in contact with it while playing about the roof, it might be contended that its condition was the proximate cause of his death. But such was not the case; all of the defendant's wires were so far out from the house that they could not possibly have been reached by a fullgrown man, much less a boy of thirteen. The boy could have run and played all over the roof without the possibility of his coming in contact with these wires. It was an original, independent act of the deceased which could not reasonably have been an ticipated that brought about this most sad accident, and this act was not induced by, or did not follow as a natural sequence to, any negligence of the defendant in connection with its wires. Under such circumstances there could be no recovery, and the defendant was entitled to binding instructions, as requested." the wires where the boy grasped them, its use of them uninsulated at that point was the proximate cause of the injury; and, if the place where he came in contact with them was to be legitimately regarded as a playground for children, either on account of the character of the place or by reason of its permissive use by children, the defendant was bound to anticipate that injuries might result from its use of uninsulated wires. All this is frankly conceded by learned counsel for the appellee, whose further concession is that the boy was not a trespasser upon private property, nor guilty of contributory negligence, in view of his age. The defense is that, under the circumstances, no duty was upon the company to insulate the wires." In O'Gara v. Philadelphia Electric Co. 244 Pa. 156, 90 Atl. 529, 530, the action was against an electric company to recover The opinion concluded (p. 160): “But it is urged that, as boys had frequently got on the awning rods in their sports, the defendant company had at least constructive notice of this, and was therefore bound to insulate its wires. It does not appear that the company ever had any actual notice of the boys' performances, and, in the absence of such notice, it could safely assume that they would not do what the injured plaintiff and his companions did. Under the circumstances, nothing short of actual notice of their performances imposed any duty upon the company to protect them from injury from its wires suspended from the awning beyond their reach and that of all others in the ordinary use of the sidewalk and adjoining premises." Again, in the case of Green v. West Penn R. Co. 246 Pa. 340, L.R.A. 1915C, 151, 92 Atl. 341, it appeared that two boys, while playing, found a coil of copper wire. They attached a stone to one end of the wire, and threw it over a high tension uninsulated feed wire of the defendant company. third boy took hold of the wire and was badly injured. Upon the trial judgment A there said (p. 104): "Prudence requires those in control of a deadly current of electricity to exercise the highest degree of care in protecting the wires at points where persons in the course of their lawful em them." And attention was called to the distinction between the danger to be apprehended from the wires when hanging in the air out of ordinary reach and that which should properly be anticipated at a point where persons in the exercise of their proper employment might come into dangerous proximity to the heavily charged wires. of nonsuit was entered, which was affirmed was pointed out in Yeager v. Edison Elecby this court. In the opinion of Mr. Jus-tric Co. 242 Pa. 101, 88 Atl. 872, 873. We tice Stewart, he said (p. 343): "It is settled law that no liability results from failure to anticipate wrongful acts by others; but, waiving this, for the reason that in this case we are dealing with a trespass committed by boys of tender years, a fact | ployment are liable to come in contact with which, under certain conditions, changes the rule, and regarding the copper wire incident simply as an interference not participated in by the defendant company, and done without its knowledge, how stands the case? Without the wire present, the accident could not have occurred. By merest chance the boys found it at the foot of a telephone pole, and in sport they threw it over the feed wire. Could such a concurrence of fortuitous circumstances have been reasonably foreseen by the defendant company? Considering that defendant company stood in no relation to the wire, was not responsible for it being where it was, and had no knowledge of it being there, to hold it responsible for the injury to the boy, on the ground that it should have anticipated such consequence from the fact that it maintained an uninsulated feed wire at an elevation which would admit of a stone at tached to a wire being thrown over it, would be to substitute for injury within reasonable anticipation any possible injury which might result. There is no case that goes to such extreme length." The only one of our cases which might seem to justify any modification of the conclusions in these decisions which we have cited is Mullen v. Wilkes-Barre Gas & Electric Co. 229 Pa. 54, 77 Atl. 1108. In that case it was shown that a child of tender years climbed into a tree on the sidewalk, and was injured by contact with a poorly insulated wire running through the branches. It appeared that children were accustomed to play about the tree and climb into it. In affirming a judgment in that case per curiam, we said, (p. 61) that "on the main question presented by this appeal, whether danger to anyone was reasonably to be apprehended because of the condition of the defendant's wire, the case is admittedly close; but, in the opinion of a majority of the court, the judgment should be affirmed." That case, however, went to the extreme limit, for in the subsequent case of Trout v. Philadelphia Electric Co. 236 Pa. 506, 42 L.R.A. (N.S.) 713, 84 Atl. 967, 968, it was said (p. 510) that Mullen v. Wilkes-Barre Gas & Electric Co. "stands for, and must be confined to, its own facts." This was repeated in O'Gara v. Philadelphia Electric Co. 244 Pa. 156, 90 Atl. 529. The true line of distinction in these cases is that which In the present case the wires were hanging entirely out of ordinary reach, being 29 feet from the ground, and more than 12 feet away from the building. The defendant could not have reasonably anticipated the combination of circumstances which resulted in the injury to Geroski. He was an adult, in the full use of his faculties. He found a rope, which was a nonconductor of electricity, attached to the flagpole. He attempted to substitute for the rope a copper-plated wire, which was an excellent conductor of electricity. He then manipulated the wire, and finally walked with it in his hand, out under the heavily charged electric wire, into the street far enough to pull the copper wire over the intervening distance of 12 feet, until it came in contact with, or in close proximity to, the electric wire, 29 feet in the air. Surely the defendant could not reasonably have anticipated such a concurrence of fortuitous circumstances. Doubtless the action of Geroski was due to ignorance, but the result was no less fatal. It drew down upon him the deadly current, which, in the absence of his unusual, but active, interference therewith, would have done him no harm. The first and second assignments of error are sustained. The judgment is reversed, and it is now entered for the defendant. by the negligence of the railway's employees | Cas. 441; Eberhardt v. Glasgow Mut. resulted in the wreck of a number of cars Teleph. Asso. 91 Kan. 763, 139 Pac. 416; loaded with cattle, from which a number of Hoag v. Lake Shore & M. S. R. Co. 85 Pa. wild, dangerous Texas cattle escaped into 293, 27 Am. Rep. 653; Wood v. Pennsylthe city of Harper, Kansas, where, while vania R. Co. 177 Pa. 306, 35 L.R.A. 199, 55 they were being gathered up and driven to the stockyards by persons employed by the Am. St. Rep. 728, 35 Atl. 699; Evansville railway for that purpose, one of the cattle, & T. H. R. Co. v. Welch, 25 Ind. App. 308, a cow, attacked and injured the plaintiff, 81 Am. St. Rep. 102, 58 N. E. 88, 8 Am. who was walking on the sidewalk; this cow, Neg. Rep. 383; Beckham v. Seaboard Airafter the wreck, before attacking the plain- Line R. Co. 127 Ga. 550, 12 L.R.A. (N.S.) tiff, having made three separate attacks on 476, 56 S. E. 638; Snyder v. Colorado one of the employees driving her. The rail- Springs & C. C. D. R. Co. 36 Colo. 288, 8 way is held liable for damages done by this L.R.A. (N.S.) 781, 118 Am. St. Rep. 110, 85 cow to the plaintiff. The facts are stated in the opinion. Messrs. William R. Smith, Owen J. Wood, and Alfred A. Scott, for appellant: Negligence of the defendant was not the proximate cause of the plaintiff's injury. 2 Cyc. 368; Malony v. Bishop, Iowa, 2 L.R.A. (N.S.) 1188, 105 N. W. 407, 19 Am. Neg. Rep. 230; Atchison, T. & S. F. R. Co. v. Stanford, 12 Kan. 354, 15 Am. Rep. 362; Missouri P. R. Co. v. Columbia, 65 Kan. 390, 58 L.R.A. 399, 69 Pac. 338; Stephenson v. Corder, 71 Kan. 475, 69 L.R.A. 246, 114 Am. St. Rep. 500, 80 Pac. 938, 18 Am. Neg. Rep. 97; Cleghorn v. Thompson, 62 Kan. 727, 54 L.R.A. 402, 64 Pac. 605; Rodgers v. Missouri P. R. Co. 75 Kan. 222, 10 L.R.A. (N.S.) 658, 121 Am. St. Rep. 416, 88 Pac. 885, 12 Ann. A search has revealed but one case in addition to HARTMAN V. ATCHISON, T. & S. F. R. Co., passing upon the liability of a carrier for injury or damage inflicted by an animal which escapes from its custody or control. In Jones v. Kansas City, Ft. S. & M. R. Co. 178 Mo. 528, 101 Am. St. Rep. 434, 77 S. W. 890, it was held that the failure of the railroad company to warn an employee of the dangerous character of Texas steers which had escaped from a wrecked train, and which he was directed to drive into cattle pens, was not the proximate cause of injuries sustained while getting out of the way of a particular animal, which he knew to be wild and vicious. In Molloy v. Starin, 191 N. Y. 21, 16 Pac. 686, 20 Am. Neg. Rep. 23. Messrs. T. A. Noftzger and J. D. Houston also for appellant. Messrs. Donald Muir and George E. McMahon for appellee. Marshall, J., delivered the opinion of the court: The plaintiff, Alice Hartman, recovered a judgment in the district court of Harper county, Kansas, against the railway company, for $800, damages for personal injuries caused by being knocked down and run over by a cow which had escaped from a car broken open in a collision. The defendant appeals. Through the negligence of the defendant, a collision between two freight trains ocCurred on its road running east and west through the city of Harper. The eastbound train was a special, with sixtythree cars loaded with cattle. As a result of the collision, several of these cattle cars were torn open, and a number of cattle escaped therefrom, into the city of Harper. The defendant employed several residents of Harper to gather up the escaped cattle and put them in the stock yards. One of these men was O'Connell. While these em In L.R.A. (N.S.) 445, 83 N. E. 588, 14 Ann. Cas. Upon the general question of liability for injury by animals feræ naturæ, see notes to Hays v. Miller, 11 L.R.A. (N.S.) 748; Molloy v. Starin, 16 L.R.A. (N.S.) 445; and Phillips v. Garner, 52 L.R.A. (N.S.) 377. As to liability for injuries inflicted by domestic animals other than dogs, see note to Malony v. Bishop, 2 L.R.A. (N.S.) 1188. A. L. R. ployees were gathering up the cattle, one of them, a cow, charged the plaintiff, knocking her down and injuring her. For this injury she brought this action. A better understanding of how this cow acted, and of what those driving her did, can be had by quoting somewhat from appellant's abstract. Mr. O'Connell testified: Mr. Elder, the station agent, employed me to get some of the cattle in. It was about half past 1. . . . I joined in there to help get the cattle back. To get the cattle back we were out there until about 6:30, as near as I could judge. As we got the cattle in we put them in the stock yards. Put seven head in there. The rest got away in different directions while we were taking this bunch out there. One of the cows laid down and kind of sulked, and we went on with the balance and put them in the yards. Then I came back to see where the cow was. In the meantime she got up and started down the street. I followed her right up horseback, and she was going down the street, and I was not looking for anything to occur much. I was right after her horseback when this old lady was coming up the sidewalk. I was 2 or 3 rods behind the cow riding along, and just as the cow got even with this old lady she whirled and made a run right towards her, and run over her, and knocked her down. The cow had shown a little bad disposition before that. She made two or three dives at the horse and me, like any cow will when they get riled up and go to driving them,-get warmed up. Most any cow will. The cow was supposed to be western bred. I could not say where she came from. When I first came down to the stock yards she charged at me, and I got out of the way. There were sidewalks along the street. I was 30 or 40 feet behind at the time she made this rush for the old lady. I saw Mrs. Hartman coming along. I was on horseback. The cow was walking. I was not expecting her to run. I do not know if the fact that she had made some passes at me and my horse had anything to do with my staying so far behind. was not particularly afraid of her at that time. I did not want to crowd her on. I was waiting for help. I felt at this time that I should have had more help with the I At the time I first saw Mrs. Hartman she was walking on the sidewalk. When the cow came up near to Mrs. Hartman she turned and ran at her, tore down the street, and run for her and struck her; threw Mrs. Hartman down and run over her. The cow went on through the fence, over the fence; turned a somersault right over the fence; had some speed up. She had been walking quietly along just prior to that time. I was as close as 20 feet to her, anyhow. After she turned before she struck Mrs. Hartman she had to travel 25 or 30 feet, or about halfway across the street. There was a fence right against the sidewalk. The cow struck Mrs. Hartman and ran over her and turned a com plete somersault over the fence. It was done so quickly I could not tell. I knew she went over it,-turned right over. I thought she was going to get up and make for the old lady, and I run right across and told her to make for the house. Then I drove my horse right across the sidewalk, and the cow got over the fence and turned and went down the street. I judge it was about 5 o'clock. I did not assist Mrs. Hartman at all. Went after the cow. The cow went down the street, and there were some children on the street. I went on down to get them out of the road. Hollered to the children to get out of the road, and saw Mrs. Hartman get up and go into the house, and I was trying to follow this cow up and do all I could. The cow went down on a vacant lot and laid down. I did not get the cow back up to the stock yards. I was running a livery barn, and about 6:30 I had to go back to the barn. The other boys came along with a rope, and had better saddle horses than I had to take hold of her. . . Before she ran over the plaintiff I had been driving her with the other cattle. When she dropped from the bunch she laid down beside the road. She was pretty scrappy before that; fought the horse and fought us. A man named Jack Munger and I were driving. After she quieted down she acted like any other cow would under the circumstances. We run them a good deal and got them warmed up, and they got mad. This cow showed fight before she laid down. That was before she struck Mrs. Hartman." Sam Row testified: "The cattle liberated were western cattle-long-horn cattle. I would call them wild and scrappy cattle. They were wild and savage." The jury returned a general verdict in favor of the plaintiff. Several special questions were submitted to the jury and answers returned, the material ones of which are as follows: “(1) Q. What, if any, negligence was the defendant guilty of that caused the injury to the plaintiff, if any injury the plaintiff received? Ans. Neglect to perform their duty in failing to turn switch, which caused wreck and liberated cattle." "(6) Q. If the defendant's negligence caused the injuries complained of, give the name or position of the employee or employees guilty of such negligence. Ans Conductor." "(8) Q. Had the animal that ran over the plaintiff been passing quietly down the highway in front of O'Connell for several blocks, just prior to the time plaintiff was run over by said animal? Ans. No. "(9) Q. Was said animal passing down the highway quietly and in an ordinary walk, just prior to the time it ran over the plaintiff? Ans. Yes. "(10) Q. After the animal in question ran over the plaintiff, was it driven for some distance by O'Connell in an ordinary walk to a lot where it lay down? Ans. Yes. "(11) Q. Were the cattle that escaped what is known as white-faced cattle (at least in the main)? Ans. Yes. "(12) Q. If the cow that ran over the plaintiff was wild and dangerous, when did any representative of the defendant learn that fact? Ans. When said cow charged O'Connell. "(13) Q. Who, if anyone, learned said COW was dangerous? Ans. O'Connell and Sam Noel. "(14) Q. Did the animal that ran over the plaintiff belong to the species known as white-faced cattle? Ans. No." "(17) Q. What was the direct and immediate cause of the cow running over the plaintiff? Ans. Because of a vicious disposition. "(18) Q. How long was it from the time the cattle escaped until the plaintiff was run over by the cow in question? Ans. About four hours. “(19) Q. Are what is known as whitefaced cattle wild, unruly, or dangerous as a class? Ans. Yes. "(20) Q. Were these cattle what is known generally as the wild, dangerous Texas cattle? Ans. Yes." A demurrer to the evidence was overruled, and a motion for judgment in favor of the defendant, on the special findings, was denied. to the plaintiff for the injuries sustained. Was the negligence in causing the wreck the proximate cause of the injury to the plaintiff, as that expression is used in actions for damages for personal injury? The following cases may assist in answering this question: "Negligence is the proximate cause of an injury when it appears that 'the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.'" Schwarzschild & S. Co. v. Weeks, 72 Kan. 190, syl. 3, 4 L.R.A. (N.S.) 515, 83 Pac. 406, 19 Am. Neg. Rep. 242. "Negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom, not that the specific injury would result.' Atchison, T. & S. F. R. Co. v. Parry, 67 Kan. 515, syl. ¶ 2, 73 Pac. 105. "The proximate cause of an injury is the primary moving cause without which it would not have been inflicted, and which, in the natural and probable sequence of events, without the intervention of any new and independent cause, produces the injury." Winona v. Botzet, 23 L.R.A. (N.S.) 204, syl. ¶ 4, 94 C. C. A. 563, 169 Fed. 321, 21 Am. Neg. Rep. 445. The negligence of the defendant's employees caused the wreck of cars loaded with cattle. From these cars some of the cattle escaped. Some of the escaped cattle did injury. This was the natural, probable, and to be expected, result of the negligence, and ought to have been foreseen by a person of ordinary caution and prudence, in the light of the attending circumstances. The specific injury could not be foreseen, but that these cattle would do some damage, in their fright or their anger, was very likely; that injury might reasonably have been expected to be to gardens, crops, animals, or to persons. The negligence causing the wreck was the primary or first moving cause, without which the injury would not have been inflicted. Was there another, an intervening cause, between the defendant's negligence and the injury to the plaintiff? "Where two distinct, successive causes, wholly unrelated in operation, contribute toward the production of an accident resulting in injury and damage, one of such causes must be the proximate, and the other the remote, cause of the injury. A prior The defendant contends that the negligence of its employees in causing the wreck was not the proximate cause of the injury to the plaintiff; that there was an intervening cause of the injury; that this intervening cause was the act of the cow in charging the plaintiff; that the company had no knowledge of the cow's vicious disposition for a sufficient length of time in advance of the cow's attack upon plaintiff to have prevented the same by the exercise of ordinary care; that its employees did their best to drive the cow to the stock and remote cause cannot be made the basis yards; that there was no contractual relation between plaintiff and defendant, and for that reason the defendant could not be guilty of negligence toward the plaintiff; and that for these reasons it is not liable of an action for the recovery of damages if such remote cause did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened, between such |