The defendant's guilt of negligence preceding an accident does not make him liable for the injury resulting from the accident unless such injury was occasioned by the negligence of which the defendant was guilty. The connection of cause and effect must be established. 1 Shearm. Red. Neg. (4th ed.), s. 25; Black Acc. Cas. 3; Lester v. Pittsford, 7 Vt. 158; State v. Railroad, 52 N.H. 528; Hall v. Brown, 54 N.H. 495; Edgerly v. Railroad, 67 N.H. 312. Whether the defendant's negligence was the proximate cause of the plaintiff's injury is in general a question of fact for the jury. Boothby v. Railroad, 66 N.H. 342; Gilman v. Noyes, 57 N.H. 627; Stark v. Lancaster, 57 N.H. 88; Milwaukee, etc., Co. v. Kellogg, 94 U.S. 469, 474. If there is any substantial evidence, the jury are to decide upon the balance of probabilities. They are to determine what amount or weight of competent evidence is sufficient or insufficient to convince their minds and determine the dispute between the parties.
Even though appellee was negligent, its negligence was not the proximate cause of the accident. Lauson v. Fond Du Lac, 141 Wis. 57, 25 L.R.A. (N.S.) 40, 135 Am. St. Rep. 30, 123 N.W. 629; New York, C. H.R.R. Co. v. Maidment, 21 L.R.A. (N.S.) 794, 92 C.C.A. 413, 168 Fed. 21; Sublett v. Mobile O.R. Co., 145 Ky. 707, 38 L.R.A. (N.S.) 1153, 141 S.W. 50; Minneapolis Street R. Co. v. Odegaard, 104 C.C.A. 496, 182 Fed. 56; Wabash R. Co. v. Coker, 81 Ill. App. 660; Gilman v. Noyes, 57 N.H. 627; Thomas v. Quartermaine, L.R. 18 Q.B. Div. 685, 56 L.J.Q.B. (N.S.) 340, 57 L.T. (N.S.) 537, 35 Week. Rep. 555, 51 J.P. 516; Hanson v. Manchester Street R. Co., 73 N.H. 395, 62 A. 595; Nashua Iron Steel Co. v. Worchester N.R. Co., 62 N.H. 159; Noyes v. Boscawen, 64 N.H. 361, 10 Am. St. Rep. 410, 10 A. 690; 2 Cooley, Torts (3 Ed.) 1475; Willfond v. Omaha St. L.R. Co., 116 Iowa, 548, 90 N.W. 358; Chicago, S.F. C.R. Co. v. Bentz, 38 Ill. App. 485; Storm v. Cleveland, C.C. St. L.R. Co., 156 Ill. App. 88; Miller v. Louisville, N.A. G.R. Co., 128 Ind. 97, 25 Am. St. Rep. 416, 27 N.E. 339; Brannen v. Kokomo, G. J. Gravel Road Co., 115 Ind. 115, 7 Am. St. Rep. 411, 17 N.E. 202; Aurelius v. Lake Erie W.R. Co., 19 Ind. App. 584, 49 N.E. 857; Lake Shore M.S.R. Co. v. Boyts, 16 Ind. App. 640, 45 N.E. 812; Missouri, K. T.R. Co. v. Bussey, 66 Kan. 735, 71 P. 261; Bush v. Union P.R. Co., 62 Kan. 709, 64 P. 624; Smith v. Maine C.R. Co., 87 Me. 339, 32 A. 967; Allyn v. Boston A.R. Co., 105 Ma
Ringaard v. Allen Lubricating Co., 147 Wn. 653, 267 P. 43. Appellant contends, however, that its negligence, if any, did not directly contribute, as one of the proximate causes, to respondent's injuries, and that it cannot be held that "but for" the negligence of appellant the injury would not have occurred. Crowley v. City of West End, 149 Ala. 613, 43 So. 359, 10 L.R.A. (N.S.) 801; Gilman v. Noyes, 57 N.H. 627. In this connection, appellant also relies upon the opinion of this court in the case of McAbee v. French, supra.
(3) The court erred in giving plaintiff's Instruction 3, because said instruction authorized a verdict against the defendant Carroll without requiring the jury to find that Carroll's negligence, if any, was the proximate cause of plaintiff's injury. 21 Harvard Law Review, 234; Thompson v. City of Slater, 197 Mo. App. 261; Foley v. McMahon, 114 Mo. App. 442; Storey v. Mayor of City of New York, 51 N.Y.S. 580, 29 A.D. 316; Gillman v. Noyes, 57 N.H. 627; Gulf Cooperage Co. v. Abernathy, 54 Tex. Civ. App. 137; Lemos v. Madden, 28 Wyo. 11; Atlantic Coast Line Ry. Co. v. Daniels, 8 Ga. App. 775; Martin v. Ry. Co., 55 Ark. 521; Pittsburgh Reduction Co. v. Horton, 87 Ark. 576; Texas P. Ry. Co. v. Bingham, 98 Tex. 223; McCleary v. Sioux City Ry. Co., 3 Neb. 44; Trapp v. McClelland, 74 N.Y.S. 120, 68 A.D. 362 ; Schoultz v. Eckhardt Mfg. Co., 112 La. 568; Marsh v. Great Northern Paper Co., 101 Me. 484. T.J. Madden, Achtenberg Rosenberg, Darius A. Brown and John G. Park for respondents.
In order to charge the defendant with negligence resulting in personal injury to the plaintiff, when both are present and acting at the time of the collision, it is essential for the plaintiff to prove that a man of ordinary prudence and foresight in the defendant's situation would have anticipated that injury might naturally result from his act or omission, to one in the plaintiffs' situation. Stark v. Lancaster, 57 N.H. 88; Gilman v. Noyes, 57 N.H. 627; Searle v. Parke, 68 N.H. 311; McGill v. Company, 70 N.H. 125, 129; Gahagan v. Railroad, 70 N.H. 441; Waldron v. Railroad, 71 N.H. 362; Lord v. Railroad, 74 N.H. 39; Harriman v. Moore, 74 N.H. 277; Brown v. Kendall, 6 Cush. 292, 296; Hamilton v. Railway, 163 Mass. 199; Milwaukee etc. Ry. v. Kellogg, 94 U.S. 469, 475. While the question of proximate cause, including the question of the defendant's duty of anticipating or foreseeing that the result might naturally happen, is ordinarily one of fact for the jury, this rule "is necessarily subject to the limitation affecting the submission of all questions of fact to the jury: that if on the evidence reasonable men can come to only one conclusion, there is no question for their decision."
Prescott v. Robinson, 74 N.H. 460; Challis v. Lake, 71 N.H. 90, 96; Dow v. Gas Co., 69 N.H. 312, 315, 316; Bixby v. Dunlap, 56 N.H. 456, 462; 6 Thomp. Com. Neg., ss. 7193, 7196; 1 Sedg. Dam. (8th ed.), s. 111; 1 Suth. Dam. (3d ed.), s. 16. The necessary connection between the wrong and the injury is stated as "the, natural order of cause and effect," "its natural concomitant," "legal and natural," "direct and natural," "natural and continuous," "natural and probable," "natural and reasonable," "the natural consequence . . . and such as might have been anticipated by the exercise of reasonable prudence," or such as "naturally and reasonably could be expected to result." All these statements, however, are made as definitions of proximate cause, or perhaps more accurately as statements of the conditions under which the wrong could be found to be the proximate cause of the injury. Gilman v. Noyes, 57 N.H. 627; Searle v. Parke, 68 N.H. 311; Pittsfield etc. Co. v. Shoe Co., 72 N.H. 546, 548; Cool Torts 68-77; Shearm. Red. Neg., ss. 26, 739; and authorities above cited. Whether the defendants' wrongful act was the proximate cause of the injury complained of is a question of fact. Ela v. Cable Co., 71 N.H. 1; Hendry v. North Hampton, 71 N.H. 26; Olney v. Railroad, 71 N.H. 427; Hamel v. Company, 73 N.H. 386.
result of a breach. The parties could not have contemplated that the plaintiff would knowingly expose his own or others' beasts to, injury. Cate v. Cate, 50 N.H. 144, 149; Gilman v. Noyes, 57 N.H. 627, 632; Noyes v. Blodgett, 58 N.H. 502; Rafferty v. Drew, 64 N.H. 616; Hutt v. Hickey, 67 N.H. 411, 417, 418; Hadley v. Baxendale, 9 Exch. 341. But according to the declaration, and as matter of law, the ground of the plaintiff's action is not the breach of the defendants' engagement to maintain the partition fence, but is their negligence in the performance of the duty.
In this state it is well settled that the question of remote and proximate cause is a question of fact to be determined by the jury. Gilman v. Noyes, 57 N.H. 627; Boothby v. Railway, 66 N.H. 342; Searle v. Parke, 68 N.H. 311, 312; Deschenes v. Railroad, 69 N.H. 285, 289; McGill v. Granite Co., 70 N.H. 125, 129. There was sufficient competent evidence bearing on the question to warrant its submission to the jury in this case. Besides the evidence of the faulty construction of the line of wires, and its natural tendency to cause injury to travelers upon the highway, it appeared that the poles and wires were located near trees of the woodland through which the highway passed, and that the trees were of suitable size to be manufactured into wood and lumber.
The question of remote and proximate cause is generally for the jury. Boothby v. Railway, 66 N.H. 342; Stark v. Lancaster, 57 N.H. 88; Gilman v. Noyes, 57 N.H. 627. This proposition, however, is necessarily subject to the limitation affecting the submission of all questions of fact to the jury: that if on the evidence reasonable men can come to only one conclusion, there is no question for their decision. Pike v. Railway, supra; Deschenes v. Railroad, 69 N.H. 285. Whatever the cause of the escape of the cars, McGill's act was a wrongful, responsible, intervening force which was the proximate cause of his own injury. State v. Railroad, 52 N.H. 528, 552; Gilman v. Noyes, supra; Cool. Torts 68-70. Upon the evidence no other conclusion is reasonable.
In trespass quare clausum, the defendants would be liable in nominal damages, at least, for the breaking and entering which they directed. They would also be responsible for any damage directly caused by the act of breaking and entering, and for any consequential injury that naturally and reasonably could be expected to result therefrom. For consequences neither natural nor probable they would not be answerable. Gilman v. Noyes, 57 N.H. 627; Poll. Torts 31-37; Cool. Torts 68-77. The larceny was not the immediate or direct result of the unlawful act which the defendants directed.