Opinion
March Term, 1896.
Daniel Beach and Gabriel L. Smith, for the appellant.
James Bacon, for the respondent.
The question, when an injury is done, is whether there is any responsible person who could, if he had chosen, have prevented it; but who, either seeing the evil consequences, or negligently refusing to see them, has put into motion, either negligently or intentionally, a series of material forces by which the injury was produced. This is the basis of the distinction between causes and conditions. (Whart. on Neg. § 85.)
The cause of the injury was the action of the buffers in coming together. The escape of the steam was a condition of the injury.
It is not merely distance of place or causation that renders a cause remote. The cause nearest in order of causation, which is adequate, without any efficient concurring cause to produce the result, may be considered the direct cause.
It is incumbent upon the plaintiff to prove, first, the defect in the engine; second, negligence of defendant in respect to such defect; and, third, that the injury sustained was the direct, immediate consequence of such negligence.
The escape or discharge of steam from a locomotive is one of the usual and ordinary incidents of the business that the plaintiff undertook to perform. Whether in the particular instance a switchman would be liable to be enveloped in escaping steam while engaged in making a coupling would depend upon the force and direction of the wind and his position at the time. Steam is almost instantly dispelled and quickly changes its density and position. Upon the evidence given in this case the jury were left to draw the inference that, if no steam had escaped from the defective valve, the plaintiff would not have sustained an injury, notwithstanding some portion of the steam was discharged by the relief valve in respect to which no negligence could be predicated. In other words, the court left it to them to weigh or measure the quantity of steam issuing from the defective valve, and that escaping from the relief valve; to determine its density, and then infer or conjecture that the former was of sufficient density, without the existence of the latter, to cause or produce the injury; and that the injury would have occurred even if no steam had escaped from the relief valve. When we consider the dangerous character of plaintiff's employment and the many accidents that occur in its pursuit, it seems an unwarrantable conclusion that the discharge of steam from a locomotive is the proximate, or one of the immediate causes of the injury.
Then, again, it is difficult to conceive that the injury was the natural or probable consequence of the defective valve, and that it ought to have been foreseen, or reasonably expected or anticipated, in the light of the attending circumstances, by a person of ordinary intelligence and prudence. A person is not called upon to use that degree of care against an improbable result which he would be bound to use against a probable one. A man is not bound to ward against a result which cannot be reasonably expected to occur, and negligence cannot be attributed to him for failing to do so.
Negligence is ordinarily a question for the jury, but only when the facts would authorize a jury to infer it. ( Sutton v. N.Y.C. H.R.R.R. Co., 66 N.Y. 249.)
So, as to inferring a consequence or result from the state of the atmosphere, the presence of steam and the force and direction of the wind, whereby a man lost his hand by placing it between the buffers. That is not the usual, ordinary or natural consequence of steam.
An essential element of negligence is a knowledge of facts which render foresight possible, and the circumstances necessary to be known before the liability for the consequence of an act or omission will be imposed must be such as would lead a prudent man to apprehend danger. All are bound to foresee what experience will teach them is likely to follow from the existence of a given state of facts. In a given case action must be dictated by experience.
Where there is no knowledge of facts which would lead to an apprehension of danger, there can be no imputation of foresight or blameworthiness, and these two ingredients are necessary to constitute negligence. ( McNish v. Village of Peekskill, 91 Hun, 327.)
How could it be reasonably held that a man of ordinary or common intelligence or prudence could reasonably expect, foresee or anticipate that the escape of steam from a defective valve in a locomotive would or could result in the amputation of the hand of a switchman, as a direct or proximate cause? The discharge of steam is a usual or necessary concomitant of the use of the engine; and a switchman must be expected to be enveloped in more or less steam, irrespective of any defect in the valves.
It seems to me that the right of plaintiff to recover must be based upon neglect to furnish a safe place, or rather upon negligence in rendering the place dangerous at the instant of time plaintiff was engaged in performing the act.
The plaintiff's contention is, that the place was rendered dangerous "upon the instant," whereby a vapor or mist was created which resulted in the injury to plaintiff. Then the plaintiff tells the jury, in effect, that this vapor from the defective valve was of such density, irrespective of the vapor from the relief valve, as to greatly impair his vision, and the jury takes his word for it, and then draws the conclusion that the vapor was the immediate or proximate cause of the plaintiff getting his hand between the buffers. This vapor was not the cause of the accident, but was a condition under which it occurred, and that condition was wholly unexpected and not likely to be foreseen.
The immediate cause of the injury was the action of the buffers coming together while the plaintiff was in the act of making the coupling. What was the causa causans? The jury says it was the density of the vapor. Plaintiff was engaged in doing a very dangerous act. He claims that he was not negligent; that no negligence, carelessness or recklessness on his part contributed to the injury; that he had no time to abstain from placing the coupling pin while the vapor was collecting, enveloping him and obstructing his vision. And the jury believed that must be so, because the plaintiff told them so. Were the jury at liberty to conjecture that the plaintiff did not continue to perform or execute the act while his vision was impaired? That he could not wait until the vapor was dispelled in a few seconds? That he must continue his work in a place known to him to be at all times dangerous and rendered doubly so by this vapor?
A thorough and critical examination of all the evidence in this case convinces me that the conclusion of the jury, voiced by its verdict, must necessarily have been the result of misconception, conjecture or surmise. Certainly the verdict is unsupported by the evidence, and the court must have no hesitancy or delicacy in so declaring, however exalted an opinion the court may have of the jury system, and for the judgment, intelligence, impartiality and integrity of American jurors.
I am of the opinion that the judgment and order should be reversed, and the motion for new trial granted, with costs to abide the event of the action.
All concurred, except ADAMS, J., not sitting.
Judgment and order reversed and a new trial granted, with costs to abide the event.