I think the prevailing opinion reaches the correct result. Of course, to entitle the plaintiff to recover, the defendant's negligence must have been the proximate cause of the injury; or, it must have been a proximately contributing factor concurring with another force, either unavoidable or the result of negligence, to produce the injury complained of and without which it would not have occurred.
The findings are not as clear as they might be. For instance, the finding that "this damage could have resulted had the rainfall not been unprecedented or extraordinary" (italics supplied) falls short of determining liability. The word "would" must be substituted for "could" to afford such a conclusion.
Neither is it enough to support liability that negligence merely contributes to an injury. Proximate causation — efficient contribution as a substantial factor in producing the harm complained of — must appear. I shall here take neither the time nor the space to set forth my views upon this subject. They are expounded at length in my dissenting opinion, concurred in by Mr. Justice Brice, in the case of Pettes v. Jones, 41 N.M. 167, 186,66 P.2d 967, 979.
In the case at bar the court's mere finding that defendant's negligence was "a contributing cause to the flooding and damaging of plaintiff's property" might be fatal to recovery but for the presumption of correctness attending the judgment under review. Absent an objection below to this finding upon the ground that it does not find proximate contribution, as said in the prevailing opinion, it may and should be assumed in support of the judgment that such degree of contribution was intended. Otherwise the court would not have given plaintiff judgment.
In Pettes v. Jones, supra, no such presumption could properly be deduced as that here indulged. We there were dealing with claimed conflict between a general and a special verdict. The general verdict acquitted the plaintiff of negligence that contributed proximately to cause the injury. The special verdict merely found that such negligence contributed "to any (some) extent." There, (a jury case) every presumption short of irreconcilable conflict between the general and special verdicts (which, in my opinion did not exist) obtained in favor of the general verdict. The majority in that case supplied by presumption the word "proximate" for the special verdict. Thus arose the irreconcilable conflict between the general and special verdicts which *Page 336 resulted in overturning the judgment reviewed.
The exact point decided by the majority in Pettes v. Jones, supra, is correctly stated in the opinion herein of Mr. Justice Bickley, viz., that under the peculiar facts there shown a finding that plaintiff's negligence contributed to any extent (however slightly) to the injury was a finding as a matter of law that it contributed proximately. The most that can be said of the holding in its broader aspect is that in a limited class of cases, having peculiar facts, such as the automobile "tail light" case in Pettes v. Jones, supra; or, the automobile "cutout" case dealt with in Hines v. Foreman, Tex. Com.App., 243 S.W. 479, (cited in the opinion of Mr. Justice Bickley in Pettes v. Jones, supra), the "any extent" or "any degree" doctrine of causation will be applied. Any departure from the rule of proximate causation in negligence cases is disclaimed by the assertion that in this class of cases contribution to any degree is proximate causation. Thus is formal adherence to the doctrine of proximate causation preserved while its substance is drawn away.
But recognizing, as I do, that the law for this jurisdiction has been declared as above stated in Pettes v. Jones, supra, my concern is to confine application of the doctrine within as narrow limits as possible, since obviously, and to the extent that it operates, its practical effect is to strike down proximate causation as the test and to substitute in its stead the "any degree" or "any extent" theory.
With recurring frequency we may expect to be confronted by plaintiffs who, unable to establish actionable negligence by the usual proximate cause test as applied outside the limited field occupied by Pettes v. Jones, supra, will attempt to persuade us that their facts bring them within the doctrine of that case. Only to the extent that we are able accurately to catalogue and classify the varying factual situations as placing the case within or without the control of Pettes v. Jones, supra, shall we be able to prevent its doctrine from invading the whole field of negligence.
The instant case furnishes the first example of facts which, according to the evident view of the prevailing opinion, calls for classification. I do not think it calls for classification. On the contrary, since the defendant, by proper action below, failed to test the trial judge's mind upon the issue discussed, I think we must presume, in support of the judgment and from the very fact that he rendered the judgment he did, that in denominating defendant's negligence a "contributing cause" of plaintiff's injury he meant a "proximately contributing cause." Thus, I am spared the necessity of determining whether the factual situation here disclosed calls for an application of the doctrine of Pettes v. Jones, supra, in part relied upon in the opinion of Mr. Justice BICKLEY.
I concur in the result announced by him.
BRICE, J., concurs. *Page 337