« PreviousContinue »
contributing to the injury. Can it be said | damages for personal injuries, resulting in the present case that appellant ought from a seven-year-old boy having come in to have reasonably anticipated that any contact with an uninsulated wire of defendperson upon the ground would come in con- ant. It appears that the wire was some 8 tact with its electric wires carried at a or 10 feet above the sidewalk, and was conheight of 29 feet in the air, and 12 feet nected with an electric light suspended distant from the building? Was it bound to from the bar of an awning; that the boy foresee that appellee's husband would at- had climbed up a pole supporting the awn. tach a wire to the flagpole 12 feet away, j ing, and, while walking along a horizontal and then walk out into the street under the bar, had come in contact with the wire. wires, and pull upon the small wire in his There was evidence that the boys of the hand until he had drawn it over the in- neighborhood, including plaintiff, had been tervening distance, and brought it in con- forbidden to climb the pole, and there was tact with, or in close proximity to, the no evidence that defendant had actual overhead electric wire? If not, then it fol. knowledge that they did so. It was held lows, under what may properly be regarded that under these circumstances there could as the well-settled doctrine of our cases, be no recovery. Mr. Justice Brown said that there can be no recovery by plaintiff, (p. 158): "If the defendant company ought and that judgment should have been en- reasonably to have anticipated contact with tered for the defendant. Thus, in Trout v. the wires where the boy grasped them, its Philadelphia Electric Co. 236 Pa. 506, 42 use of them uninsulated at that point was L.R.A. (N.S.) 713, 84 Atl. 967, 968, it ap- the proximate cause of the injury; and, if peared that a thirteen-year-old boy was en- the place where he came in contact with deavoring to detach a kite from an electric them was to be legitimately regarded as a wire on which it had been caught, when he playground for children, either on account received a shock which resulted in his death. of the character of the place or by reason The wire was stretched upon poles, at a dis- of its permissive use by children, the detance of about 4 to 6 inches from the out. fendant was bound to anticipate that inside edge of the cornice of the house. The juries might result from its use of uninboy lay down on the cornice and threw a sulated wires. All this is frankly conceded corncob tied to the end of a string over the by learned counsel for the appellee, whose electric wire and pulled it toward him. further concession is that the boy was not When the wire came within reach he a trespasser upon private property, nor touched it, and immediately received the elec- guilty of contributory negligence, in view tric shock. This court, speaking through Mr. of his age. The defense is that, under the Justice Moschzisker, said (p. 509): “The circumstances, no duty was upon the comact of the boy in getting hold of the wire pany to insulate the wires." was wholly unrelated to any act of the The opinion concluded (p. 160): “But defendant in connection therewith. Had the it is urged that, as boys had frequently got wire been so close to the house that the boy on the awning rods in their sports, the demight naturally have come in contact with fendant company had at least constructive it while playing about the roof, it might be notice of this, and was therefore bound to contended that its condition was the proxi- insulate its wires. It does not appear that mate cause of his death. But such was not the company ever had any actual notice of the case; all of the defendant's wires were the boys' performances, and, in the absence so far out from the house that they could of such notice, it could safely assume that not possibly have been reached by a full- they would not do what the injured plaintiff grown man, much less a boy of thirteen. and his companions did. Under the cirThe boy could have run and played all cumstances, nothing short of actual notict over the roof without the possibility of his of their performances imposed any duty coming in contact with these wires. It was upon the company to protect them from inan original, independent act of the deceased jury from its wires suspended from the which could not reasonably have been an awning beyond their reach and that of all ticipated that brought about this most sad others in the ordinary use of the sidewalk accident, and this act was not induced by, and adjoining premises." or did not follow as a natural sequence to, Again, in the case of Green v. West Penn any negligence of the defendant in connec. R. Co. 246 Pa. 340, L.R.A. 1915C, 151, 92 tion with its wires. Under such circum- Atl. 341, it appeared that two boys, while stances there could be no recovery, and the playing, found a coil of copper wire. They defendant was entitled to binding instruc- attached a stone to one end of the wire, and tions, as requested."
threw it over high tension uninsulated In O’Gara v. Philadelphia Electric Co. 244 feed wire of the defendant company. A Pa. 156, 90 Atl. 529, 530, the action was third boy took hold of the wire and was against an electric company to recover badly injured. Upon the trial judgment
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 there said (p. 104): “Prudence requires law that no liability results from failure those in control of a deadly current of electo anticipate wrongful acts by others; but, tricity to exercise the highest degree of waiving this, for the reason that in this care in protecting the wires at points where case we are dealing with a trespass com- persons in the course of their lawful emmitted by boys of tender years, a fact ployment are liable to come in contact with which, under certain conditions, changes the them." rule, and regarding the copper wire incident And attention was called to the distincsimply as an interference not participated | tion between the danger to be apprehended in by the defendant company, and done from the wires when harging in the air without its knowledge, how stands the case? out of ordinary reach and that which should Without the wire present, the accident could properly be anticipated at a point where not have occurred. By merest chance the persons in the exercise of their proper emboys found it at the foot of a telephone ployment might come into dangerous proxpole, and in sport they threw it over the imity to the heavily charged wires. feed wire. Could such a concurrence of In the present case the wires were hangfortuitous circumstances have been reasoning entirely out of ordinary reach, being ably foreseen by the defendant company? | 29 feet from the ground, and more than Considering that defendant company stood 12 feet away from the building. The dein no relation to the wire, was not respon- | fendant could not have reasonably anticisible for it being where it was, and had pated the combination of circumstances no knowledge of it being there, to hold it which resulted in the injury to Geroski. He responsible for the injury to the boy, on was an adult, in the full use of his faculthe ground that it should have anticipated ties. He found a rope, which was a nonsuch consequence from the fact that it conductor of electricity, attached to the maintained an uninsulated feed wire at an flagpole. He attempted to substitute for elevation which would admit of a stone at the rope a copper-plated wire, which was tached to a wire being thrown over it, an excellent conductor of electricity. He would be to substitute for injury within then manipulated the wire, and finally reasonable anticipation any possible injury walked with it in his hand, out under the which might result. There is no case that heavily charged electric wire, into the street goes to such extreme length."
far enough to pull the copper wire over the The only one of our cases which might | intervening distance of 12 feet, until it came seem to justify any modification of the con in contact with, or in close proximity to, clusions in these decisions which we have the electric wire, 29 feet in the air. Surecited is Mullen v. Wilkes-Barre Gas & Elec- ly the defendant could not reasonably have tric Co. 229 Pa. 54, 77 Atl. 1108. In that anticipated such a concurrence of fortui. case it was shown that a child of tender tous circumstances. Doubtless the action of years climbed into a tree on the sidewalk, Geroski was due to ignorance, but the reand was injured by contact with a poorly sult was no less fatal. It drew down upon insulated wire running through the him the deadly current, which, in the abbranches. It appeared that children were sence of his unusual, but active, interferaccustomed to play about the tree and climb ence therewith, would have done him no into it. In affirming a judgment in that harm. case per curiam, we said, (p. 61) that The first and second assignments of error "on the main question presented by this are sustained. The judgment is reversed, appeal, whether danger to anyone was rea- and it is now entered for the defendant. sonably to be apprehended because of the condition of the defendant's wire, the case is admittedly close; bit, in the opinion of
KANSAS SUPREME COURT, a majority of the court, the judgment should be affirmed."
ALICE HARTMAN That case, however, went to the extreme limit, for in the subsequent case of Trout ATCHISON, TOPEKA, & SANTA FE RAILv. Philadelphia Electric Co. 236 Pa. 506, 42
WAY COMPANY, Appt. L.R.A. (N.S.) 713, 84 Atl. 967, 968, it was said (p. 510) that Mullen v. Wilkes-Barre
(94 Kan. 184, 146 Pac. 335.) Gas & Electric Co. "stands for, and must
escape of cattle injury to be confined to, its own facts." This was
bystander liability. repeated in O'Gara v. Philadelphia Electric
A collision between freight trains caused Co. 244 Pa. 156, 90 Atl. 529. The true line of distinction in these cases is that which Headnote by MARSHALL, J.
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 the city of Harper, Kansas, where, while 293, 27 Am. Rep. 653; Wood v. Pennsylthey were being gathered up and driven to vania R. Co. 177 Pa. 306, 35 L.R.A. 199, 55 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.
Pac. 686, 20 Am. Neg. Rep. 23. (Johnston, Ch. J., and Porter and West, JJ.,
Messrs. T. A. Noftzger and J. D. Housdissent.)
ton also for appellant.
Messrs. Donald Muir and George E. (February 6, 1915.)
McMahon for appellee.
of the District Court for Harper County court:
Marshall, J., delivered the opinion of the in plaintiff's favor in an action brought to
The plaintiff, Alice Hartman, recovered recover damages for personal injuries al
a judgment in the district court of Harleged to have been caused by defendant's
per county, Kansas, against the railway negligence. Affirmed. The facts are stated in the opinion.
company, for $800, damages for personal
injuries caused by being knocked down and Messrs. William R. Smith, Owen J.
run over by a cow which had escaped from Wood, and Alfred A. Scott, for appellant:
a car broken open in a collision. The deNegligence of the defendant was not the
fendant appeals. proximate cause of the plaintiff's injury. 2 Cyc. 368; Malony v. Bishop,
Through the negligence of the defendant,
Iowa, 2 L.R.A. (N.S.) 1188, 105 N. W. 407, 19 curred on its road running east and west
a collision between two freight trains 0cAm. Neg. Rep. 230; Atchison, T. & S. F.
The eastR. Co. v. Stanford, 12 Kan. 354, 15 Am.
through the city of Harper.
bound train was Rep. 362; Missouri P. R. Co. v. Columbia,
a special, with sixty. 65 Kan. 390, 58 L.R.A. 399, 69 Pac. 338; three cars loaded with cattle. As a result Stephenson v. Corder, 71 Kan. 475, 69 of the collision, several of these cattle cars L.R.A. 246, 114 Am. St. Rep. 500, 80 Pac.
were torn open, and a number of cattle 938, 18 Am. Neg. Rep. 97; Cleghorn v. escaped therefrom, into the city of Harper. Thompson, 62 Kan. 727, 54 L.R.A. 402, 64 The defendant employed several residents Pac. 605; Rodgers v. Missouri P. R. Co. 75 of Harper to gather up the escaped cattle Kan. 222, 10 L.R.A. (N.S.) 658, 121 Am. and put them in the stock yards. One of St. Rep. 416, 88 Pac. 885, 12 Ann. I these men was O'Connell. While these emNote. Liability of a carrier for injury, L.R.A. (N.S.) 445, 83 N. E. 588, 14 Ann. Cas.
or damage inflicted by an animal 57, it is held that a carrier having possession which escapes from its custody or of a wild animal for transportation is not control.
within the rule that the keeper of such ani.
mal is liable for injuries caused by it, irA search has revealed but one case in respective of negligence on his part. In addition to HARTMAN V. ATCHISON, T. & this case, however, the animal did not esS. F. R. Co., passing upon the liability of a cape, but the injury was brought about by carrier for injury or damage inflicted by an the injured person, who, impelled by cuanimal which escapes from its custody or riosity, went between the cages, which the control.
carrier had arranged facing each other so In Jones v. Kansas City, Ft. S. & M. R. Co. that the public could make reasonable use 178 Mo. 528, 101 Am. St. Rep. 434, 77 S. W. of the premises without danger. 890, it was held that the failure of the rail- Upon the general question of liability for road company to warn an employee of the injury by animals fera natura, see notes dangerous character of Texas steers which to Hays v. Miller, 11 L.R.A.(N.S.) 748; Molhad escaped from a wrecked train, and loy v. Starin, 16 L.R.A. (N.S.) 445; and which he was directed to drive into cattle Phillips v. Garner, 52 L.R.A. (N.S.) 377. pens, was not the proximate cause of in- As to liability for injuries infiicted juries sustained while getting out of the way domestic animals other than dogs, see note of a particular animal, which he knew to be to Malony v. Bishop, 2 L.R.A. (Ň.S.) 1188. wild and vicious.
A. L. R. In Molloy v. Starin, 191 N. Y. 21, 16
ployees were gathering up the cattle, one of prior to that time. I was as close as 20 them, a cow, charged the plaintiff, knocking feet to her, anyhow. After she turned be. her down and injuring her. For this injury fore she struck Mrs. Hartman she had to she brought this action. A better under travel 25 or 30 feet, or about halfway across standing of how this cow acted, and of what the street. There was a fence right against those driving her did, can be had by quoting the sidewalk. The cow struck Mrs. Hartsomewhat from appellant's abstract. man and ran over her and turned a com
Mr. O'Connell testified: “... Mr. i plete somersault over the fence. It was Elder, the station agent, employed me to done so quickly I could not tell, I knew get some of the cattle in. It was about she went over it,-turned right over. I half past 1. ::: I joined in there to thought she was going to get up and make help get the cattle back. To get the cattle for the old lady, and I run right across back we were out there until about 6:30, as and told her to make for the house. Then near as I could judge. As we got the cattle I drove my horse right across the sidewalk, in we put them in the stock yards. Put seven and the cow got over the fence and turned head in there. The rest got away in dif- and went down the street. I judge it was ferent directions while we were taking this about 5 o'clock. I did not assist Mrs. Hartbunch out there. One of the cows laid down man at all. Went after the cow. The cow and kind of sulked, and we went on with the went down the street, and there balance and put them in the yards. Then some children on the street. I went on I came back to see where the cow was. In down to get them out of the road. Hollered the meantime she got up and started down to the children to get out of the road, and the street. I followed her right up horse saw Mrs. Hartman get up and go into the back, and she was going down the street, house, .. and I was trying to follow and I was not looking for anything to occur this cow up and do all I could. The cow much. I was right after her horseback went down on a vacant lot and laid down. when this old lady was coming up the side- I did not get the cow back up to the stock walk. I was 2 or 3 rods behind the cow yards. I was running a livery barn, and riding along, and just as the cow got even about 6:30 I had to go back to the barn. with this old lady she whirled and made a The other boys came along with a rope, and run right towards her, and run over her, had better saddle horses than I had to take and knocked her down. The cow
had hold of her. . . . Before she ran over the shown a little bad disposition before that. plaintiff I had been driving her with the She made two or three dives at the horse other cattle. When she dropped from the and me, like any cow will when they get bunch she laid down beside the road. She riled up and go to driving them,-get was pretty scrappy before that; fought the warmed up. Most any cow will. The cow horse and fought us. A man named Jack was supposed to be western bred. I could Munger and I were driving. After she not say where she came from.
When quieted down she acted like any other cow I first came down to the stock yards she would under the circumstances. We run charged at me, and I got out of the way. them a good deal and got them warmed up,
There were sidewalks along the and they got mad. ... This cow showed street. I was 30 or 40 feet behind at the fight before she laid down. That was before time she made this rush for the old lady. she struck Mrs. Hartman.” I saw Mrs. Hartman coming along.
Sam Row testified: “The cattle liberated I was on horseback. The cow was walking. were western cattle-long-horn cattle. I I was not expecting her to run. I do not would call them wild and scrappy cattle. know if the fact that she had made some They were wild and savage.” passes at me and my horse had anything The jury returned a general verdict in to do with my staying so far behind. I favor of the plaintiff. Several special queswas not particularly afraid of her at that tions were submitted to the jury and antime. I did not want to crowd her on. I swers returned, the material ones of which was waiting for help. I felt at this time are as follows: that I should have had more help with the “(1) Q. What, if any, negligence was the
At the time I first saw Mrs. Hart- defendant guilty of that caused the injury man she was walking on the sidewalk. I to the plaintiff, if any injury the plaintiff
When the cow came up near to Mrs. received ? Ans. Neglect to perform their Hartman she turned and ran at her, tore duty in failing to turn switch, which caused down the street, and run for her and struck wreck and liberated cattle." her; threw Mrs. Hartman down and run “(6) Q. If the defendant's negligence over her.
The cow went on through the caused the injuries complained of, give the fence, over the fence; turned a somersault name or position of the employee or emright over the fence; had some speed up. ployees guilty of such negligence. Ang She had been walking quietly along just' Conductor.”
“(8) Q. Had the animal that ran over to the plaintiff for the injuries sustained. the plaintiff been passing quietly down the Was the negligence in causing the wreck highway in front of O'Connell for several the proximate cause of the injury to the blocks, just prior to the time plaintiff was plaintiff, as that expression is used in run over by said animal? Ans. No. actions for damages for personal injury?
“(9) Q. Was said animal passing down The following cases may assist in answerthe highway quietly and in an ordinary ing this question: walk, just prior to the time it ran “Negligence is the proximate cause of an the plaintiff? Ans. Yes.
injury when it appears that 'the injury was "(10) Q. After the animal in question the natural and probable consequence of
over the plaintiff, was it driven for the negligence or wrongful act, and that it some distance by O'Connell in an ordinary | ought to have been foreseen in the light of walk to a lot where it lay down? Ans. the attending circumstances.'" SchwarzYes.
schild & S. Co. v. Weeks, 72 Kan. 190, syl. “(11) Q. Were the cattle that escaped T 3, 4 L.R.A. (N.S.) 515, 83 Pac. 406, 19 what is known as white-faced cattle (at Am. Neg. Rep. 242. least in the main)? Ans. Yes.
"Negligence, to be the proximate cause of "(12) Q. If the cow that ran over the j an injury, must be such that a person of plaintiff was wild and dangerous, when did ordinary caution and prudence would have any representative of the defendant learn foreseen that some injury would likely rethat fact? Ans. When said cow charged sult therefrom, not that the specific injury O'Connell.
would result.” Atchison, T. & S. F. R. Co. "(13) Q. Who, if anyone, learned said v. Parry, 67 Kan. 515, syl. s 2, 73 Pac. 105. cow was dangerous ? Ans. O'Connell and "The proximate cause of an injury is the Sam Noel.
primary moving cause without which it “(14) Q. Did the animal that ran over would not have been inflicted, and which, the plaintiff belong to the species known as in the natural and probable sequence of white-faced cattle? Ans. No."
events, without the intervention of any new "(17) Q. What was the direct and im- and independent cause, produces the inmediate cause of the cow running over the jury.” Winona v. Botzet, 23 L.R.A.(N.S.) plaintiff? Ans. Because of a vicious dis- 204, syl. f 4, 94 C. C. A. 563, 169 Fed. 321, position.
21 Am. Neg. Rep. 445. "(18) Q. How long was it from the time The negligence of the defendant's emthe cattle escaped until the plaintiff was ployees caused the wreck of cars loaded
over by the cow in question ? Ans. with cattle. From these cars some of the About four hours.
cattle escaped. Some of the escaped cattle “(19) Q. Are what is known as white did injury. This was the natural, probfaced cattle wild, unruly, or dangerous as able, and to be expected, result of the neglia class? Ans. Yes.
gence, and ought to have been foreseen by “(20) Q. Were these cattle what is a person of ordinary caution and prudence, known generally as the wild, dangerous in the light of the attending circumstances. Texas cattle? Ans. Yes."
The specific injury could not be foreseen, A demurrer to the evidence was overruled, but that these cattle would do some damage, and a motion for judgment in favor of the in their fright or their anger, was very defendant, on the special findings, was de- likely; that injury might reasonably have nied.
been expected to be to gardens, crops, aniThe defendant contends that the negli- mals, or to persons. The negligence causing gence of its employees in causing the wreck the wreck was the primary or first moving was not the proximate cause of the injury cause, without which the injury would not to the plaintiff; that there was an inter- have been inflicted. Was there another, an vening cause of the injury; that this in- intervening cause, between the defendant's tervening cause was the act of the cow in negligence and the injury to the plaintiff? charging the plaintiff'; that the company "Where two distinct, successive causes, had no knowledge of the cow's vicious dis- wholly unrelated in operation, contribute position for a sufficient length of time in toward the production of an accident readvance of the cow's attack upon plaintiff sulting in injury and damage, one of such to have prevented the same by the exercise causes must be the proximate, and the other of ordinary care; that its employees did the remote, cause of the injury. A prior their best to drive the cow to the stock and remote cause cannot be made the basis yards; that there was no contractual rela- of an action for the recovery of damages tion between plaintiff and defendant, and if such remote cause did nothing more than for that reason the defendant could not be furnish the condition, or give rise to the guilty of negligence toward the plaintiff; occasion, by which the injury was made and that for these reasons it is not liable possible, if there intervened, between such