[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 142 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 144 The plaintiff recovered a verdict of five thousand dollars against the defendant in an action wherein the latter was charged with negligently causing the death of George H. Rider, the plaintiff's husband and intestate, on the 17th of December, 1900. It is alleged that the deceased, who was riding in a covered delivery wagon, while crossing over defendant's street car tracks at the intersection of two streets, was struck by one of defendant's electric cars, which caused him to be thrown to the pavement in such a severe and violent manner as to subsequently cause his death. The judgment entered upon the verdict has been unanimously affirmed by the Appellate Division, and, hence, the only questions presented by the appeal are those raised by exceptions to the charge of the learned trial judge as made, and to his refusal to charge as requested by defendant's counsel.
The case was tried and submitted to the jury upon the theory that even though the deceased had been guilty of contributory negligence in driving upon the track under the circumstances disclosed by the evidence, yet such negligence on his part would not bar a recovery if the jury found that the accident could have been avoided by the motorman in charge of the car. In other words, the charge of the court, in substance, was that although deceased negligently drove upon the railway track, yet the plaintiff could recover if the jury was satisfied that the motorman, upon seeing that the deceased was about to cross, could, by the exercise of reasonable care, have brought the car to a stop before the collision which resulted in the injury.
In order to clearly disclose the theory upon which the case was submitted to the jury, it will be necessary to state the substance of the charge. The learned trial judge stated that assuming the plaintiff's evidence to be correct as to where the car was when the deceased attempted to cross the track, which was from thirty-five to eighty feet back of him, he was chargeable with knowledge that it was there, and the act of the deceased being such as to show an intention to cross the street, the rule of law was that if then, in view of that distance of the *Page 145 car, he had reasonable ground to suppose that he could cross in safety, he would not be chargeable with contributory negligence as matter of law, and it would be the duty of the motorman to furnish him a reasonable opportunity to cross. That if the jury should find that he did, in view of that distance, have reasonable ground to believe that he could cross in safety, and if then the motorman did not afford him a reasonable opportunity to cross, the jury would have the right to say that he was negligent, and that if such negligence was the cause of the accident, that would furnish a basis of liability against the defendant. He also called the attention of the jury to the evidence on the part of the defendant which tended to show that the car was only fifteen or twenty feet away when the deceased started to cross, and that if such was the fact the deceased ought not to have attempted to cross. The car was moving at the rate of six to nine miles an hour, and if under these circumstances the deceased attempted to drive upon the track in front of the car only fifteen feet away, he was chargeable with negligence.
He further instructed the jury, substantially, as follows: Assuming that the deceased was careless or guilty of negligence in trying to cross the track when the car was so close that he knew, or ought to have known, that he would be hurt if the car kept on at the ordinary speed, still it did not follow that there could be no recovery against the defendant, for the law is that if there had been negligence on the part of the deceased that would really bring about the result, still if the defendant could, in the exercise of reasonable care, have avoided the accident, it was its duty to do so. "It is a question whether in such a case the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence, and in this case the question is whether when it became apparent to the car driver that the decedent had the intention of crossing, and was in the act of crossing, if at that time the car was at such a distance that if managed with the exercise of ordinary and reasonable care, the collision could have been avoided, there *Page 146 would be a basis for saying that the defendant was still liable, although the man was negligent in trying to cross the track."
The only basis for this theory of the case is found in the evidence upon the part of the plaintiff which tends to show that the deceased did not sustain the injury at the very moment that the car came in contact with the vehicle, but that it struck the rear end of the carriage and then carried it for some distance along the track, when it was overturned and thus the injury resulted. This accident differs from all such accidents at street crossings only in this respect, that the injury was not inflicted upon deceased at the instant when the car struck the vehicle, but after carrying it forward upon the track for a distance, which it is claimed by plaintiff to be from twenty-five to forty feet, the carriage was overturned and the driver injured. It is claimed on the part of the plaintiff that the motorman could have stopped the car within the space of eight feet of the vehicle, while on the part of the defendant the evidence tended to show that it could not be stopped in less than from fifty to sixty feet. It will thus be seen that the case turned largely, if not entirely, upon the ability of the motorman to stop a car moving at the rate of from six to nine miles an hour before the collision and before the carriage, in which the deceased was riding, was overturned.
The defendant's counsel excepted to the charge of the court with reference to the negligence of the deceased in case he drove upon the track when the car was anywhere from thirty-five to eighty feet away, and he requested the court to charge that he was not permitted to take even doubtful chances as to whether there was sufficient opportunity for him to cross. The court declined to charge that proposition and the defendant's counsel excepted. The defendant's counsel also excepted to that part of the charge wherein the jury were instructed that there might be a recovery notwithstanding the fact that the deceased was guilty of negligence in driving upon the tracks, and he asked the court to instruct the jury that in case they should find the deceased guilty of negligence in driving upon the tracks as he did, that there could *Page 147 be no recovery in the action. The court refused to so charge and the defendant's counsel excepted. It will be seen, therefore, that the jury were permitted to find a verdict against the defendant, notwithstanding any negligence on the part of the deceased in driving upon the tracks, provided that they could find that the motorman could have stopped the car before it upset the carriage in which the deceased was riding.
The general rule is that in an action to recover damages for personal injuries founded upon negligence it is incumbent upon the plaintiff to prove negligence on the part of the defendant, and the absence of contributory negligence on the part of the injured party. The courts have, however, engrafted upon this rule an important exception, which the learned trial judge evidently sought to apply to the facts in the case, and that is, that the contributory negligence of the injured party, which will bar an action in his behalf, must be the proximate and not a remote contributing cause of the injury. The plaintiff's contributory negligence, it is said, must not only be a contributing cause, but a proximate and not a remote cause of the injury. The proximate cause of an event must be held to be that which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred. The plaintiff's fault will not affect his cause of action unless it proximately contributed to his injury. It must be a proximate cause in the same sense in which the defendant's negligence must have been a proximate cause in order to give a right of action. (Shearman Redfield on Negligence [4th ed.], §§ 26, 94, and notes.) Contributory negligence, however great, is no defense to an action for damages for an injury which was reckless, willful or wanton. When the negligence of the deceased is but a remote cause, or antecedent of the injury, while the negligence of the defendant is made the proximate cause of it, then the plaintiff will not be debarred from prosecuting his claim by his negligence, nor will the defendant be excused from the consequences of his. (2 Thomp. on Neg. § 1995, and notes.) *Page 148
The question in this case is whether this rule can be applied to the facts here in any reasonable or practical way. The contributory negligence of the injured party cannot be taken from the jury except in cases where it is clear that there was some new act of negligence on the part of a defendant that was the proximate cause of the injury. The negligence of the deceased, if any, was substantially concurrent with that of the defendant, if any. It is impossible to separate that part of the transaction which took place after the first contact of the car with the vehicle from what took place before. It was all one transaction, and to attempt to divide it into fragments and impute one part of it to the negligence of both parties and another part to the defendant's negligence alone would, as it seems to us, entirely subvert the law of contributory negligence as applied to accidents of this character. If the theory upon which this case was tried and submitted is to be sanctioned, it must, we think, follow that in every case based upon such an accident, the result must turn not upon the general rule as stated, but upon the exception; or, in other words, the inquiry must be not whether the injured party was negligent, but whether it was reasonably possible for the defendant to have avoided the accident. It does not seem to us that the exception to the general rule in cases of this character was properly applied to the facts in this case. There is no doubt that it is a well-recognized exception to the general rule, but its application will be best illustrated by a reference to some of the leading cases upon the subject.
One of the leading cases in the English courts is Davies v.Mann (10 M. W. 546). The plaintiff sued the defendant for killing a donkey which the former had fettered and turned into a highway to graze. It appeared at the trial that the plaintiff having fettered the forefeet of the donkey, turned it into a public highway, and at the time of the accident the donkey was grazing on the off side of a road about eight yards wide, when the defendant's wagon, with a team of three horses, coming down a slight descent at what the witness termed a smartish pace, ran against the donkey, knocked it *Page 149 down, and the wheels passing over it, it died soon after. The donkey, as already stated, was fettered at the time, and it was proved that the driver was some little distance behind the horses. The learned judge instructed the jury that, though the act of the plaintiff in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages traveling along it might be illegal, still if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable, and the jury found a verdict for the plaintiff. Upon a review of the case it was held that the instructions of the trial judge were correct, the court holding that "although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so a man might justify the driving over goods left on a public highway or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road." So that all the case decides is that the negligent act of the owner of the donkey in turning it fettered into the highway to graze some days before the injury was the remote, but not the proximate cause of its death. This case is a good illustration of what is meant by the exception to the general rule, since it appears that, although the owner of the animal was originally negligent in turning it into the road, yet this negligence was only a remote and not a proximate cause of the injury.
The rule and its application is illustrated in the case ofMcKeon v. Steinway Ry. Co. (20 App. Div. 601). In that case it appeared that the injured party drove his horse and truck up to the doorway of his employer's house, and, finding the gate locked, with a view of departing, so backed up his horse into the street that the rear end of the truck projected over the eastern-bound track of the defendant's trolley railroad in that street. He then saw an approaching car upon the track and proceeded to get upon the wagon to drive away. Before he was able to do so the car collided with the rear end *Page 150 of the wagon, causing the horse to run away. The plaintiff was thrown from the wagon when upwards of two hundred feet from the place of collision and fell upon the same track. He was then unconscious and was injured by another car of the defendant going in the same direction a few minutes later. Two young daughters of the plaintiff, seeing the condition of the horse and wagon, looked for and discovered the plaintiff on the track. One of them, while making an ineffectual effort to pull him from the track, saw the approaching car, and both of them screamed. Their screams were heard by the motorman and some others on the car, which did not stop until after it had struck the plaintiff and had passed the place where he was lying. The court reversed the judgment in favor of the defendant, and Judge BRADLEY stated the principle applicable to the case in these words: "The negligence of a plaintiff, which is effectual to relieve a defendant from liability for the consequences of his negligence, must be proximate in such sense as to contribute concurrently to the result complained of. Although the injury may not have occurred but for the negligence of the former, his antecedent negligence may not be concurrent or simultaneous in such sense as to relieve the latter from the consequences of his negligence." It will be seen that that case turned upon the point that, although the driver of the truck might have been originally guilty of negligence in backing up on the railroad track, yet that negligence was the remote cause of the injury only and not concurrent or simultaneous with that of the defendant. In other words, after the negligence of the injured party there was a change in the situation and a new act of negligence was imputable to the motorman, which the court held to be the proximate cause of the injury.
In Wasmer v. Del., L. W.R.R. Co. (80 N.Y. 212) it appeared that the plaintiff's intestate was killed by a collision with one of the defendant's cars while he was engaged in securing his horse and wagon, which had run upon the track from a point in the street where he had negligently left it. Here it will be seen that the negligence of the deceased consisted *Page 151 entirely in leaving the horse and wagon in the street. The deceased, when injured, was upon the railroad trying to catch his horse, which had run away, and it was shown that the railroad could have avoided the accident by the exercise of reasonable care on the part of the engineer, who saw the deceased and his horse upon the track in time to avoid the accident. There the negligent act of the deceased consisted entirely in allowing his horse to stand in the street untied, hitched to a wagon, which resulted in the horse becoming frightened and running away. He followed the horse and wagon and found them on the railroad track, and while attempting to secure them the train ran upon them when he was in full view, and it could have been stopped in time to avoid the accident, and so it was properly held that the negligence of the deceased in leaving the horse untied was the remote and not the proximate cause of the injury, while the act of the engineer of the train in running upon him when so engaged, and when he could have been discovered in time to stop the train, was the sole proximate cause of the injury. The principle is frequently illustrated by the case of an intoxicated person who lies down upon a railroad track when no train is in view. That is unquestionably a negligent act, but if he is injured by a passing train, after being discovered by the engineer in time to stop the train and avoid injuring him, then the injury may be imputed solely to the negligence of the railroad, as the sole proximate cause, his own negligence being so remote as not to preclude a recovery. If, however, the same person had gone upon the track in full view of an approaching train when there was no reason to suppose that his presence could be discovered by the engineer in time to control the train and avoid injuring him, then the act of the injured party would be regarded as the proximate contributing cause of the injury and a bar to any recovery.
But we are unable to see how this exception to the general rule, as illustrated by the cases cited, can be applied to the facts of this case where there was no claim that the motorman acted willfully or recklessly. The claim is that he could *Page 152 have stopped the car within the space of eight feet and thus avoided the result of the negligence of the deceased. The negligence, if any, was substantially concurrent with that of the motorman, if he was negligent at all. The whole collision was the work of but a moment of time, and to attempt to separate what took place before the contact of the car with the vehicle from what took place afterward would be to create distinctions and refinements that in the end would practically abrogate the rule in such cases that the injured party cannot recover when his negligence is a contributing cause of the injury. In this case, if the deceased was in fact negligent in driving upon the track, when the approaching car was so near as to render the act dangerous, then such negligence cannot be regarded as remotely connected with the accident within the meaning of the rule stated, but a proximate concurrent cause which precludes a recovery. Unless the character of the accident is such that it can be fairly said that the negligence of the injured party is but a remote cause, the exception is not applicable. It is admitted that upon the assumption that the act of the deceased in driving upon the track was negligent, there could be no recovery if the injury resulted from the first contact of the car with the wagon. But since it did not, and the pressure of the car upon the wagon was not relaxed until some inappreciable space of time thereafter, when the horse and wagon were carried forward for some distance, the negligence of the deceased could be eliminated from the inquiry and the defendant held liable, upon the sole ground that the motorman was negligent in not bringing the car to a stop before he did. In other words, that under such circumstances the negligence of the motorman was the sole proximate cause of the injury, while that of the deceased was too remote to operate as a defense. This theory left nothing to the jury but the conduct of the motorman, based upon nice calculations as to the distance of the car from the crossing when the deceased turned to drive upon the track, the speed of the car and the ability of the motorman to stop it in a *Page 153 moment of time. The practical result of this theory is to hold that at the moment of the first contact the negligence of the deceased was proximate and contributory, while a moment afterwards it became remote and immaterial. This involves a refinement of reasoning and a process of speculation that is scarcely practical or possible in the determination of the rights of parties in controversies of this character. It permitted the jury to divide a transaction which was in itself indivisible, and to attribute the injury to the conduct of the motorman after the first contact without regard to the negligence of the driver in creating the situation.
It was, we think, a mistaken application of the doctrine that a remote act of the injured party, though negligent, does not bar a recovery for the injury, since there was no place for its proper application to the facts of the case. There must undoubtedly be a causal connection between the negligence of the injured party and the injury itself, but his fault is deemed to be the juridical cause of the injury when it consists of such an act or omission on the part of a responsible human being as in ordinary and natural sequence immediately results in such injury. This is what is meant by the term proximate cause in any inquiry as to the connection of the negligent act with the resultant injury. We may not confound the act with its execution, nor the entire act with the last part or the final consummation, and by that means make the immediate cause the remote cause. (Wharton on Neg. 1874, §§ 73, 155, 323.) The defendant's responsibility could not have been determined by looking merely at the consummation of the injury, but the transaction should be viewed in its entirety, and if the deceased was guilty of negligence its effect upon the right of action could not be eliminated from the case after the first contact of the car with the wagon.
We recognize fully the force of the rule that the negligence of the injured party is no defense to an action in his behalf when such negligence is connected with the accident only in some remote way and is not a proximate concurrent cause. But this rule, or rather this exception to a general rule, has no *Page 154 application to a case like the one at bar, where the act of the deceased and the conduct of the motorman were substantially concurrent, and where it is practically impossible to separate the conduct of the injured party in driving upon the track from the injury itself. Therefore, we think that in so far as the learned trial court refused to charge that if the jury found that the deceased was negligent in going upon the track as he did, there could be no recovery, and that he was not permitted to take doubtful chances as to whether it was safe to cross, the ruling was erroneous and the request should have been charged.
The question of remote and proximate cause in actions of negligence opens a favorable field for refined and speculative reasoning, as will be seen from the discussions to be found in the books, much of which seems to border closely on casuistry. But there are some general principles as to which all agree that will furnish a safe guide in the solution of the questions presented by this appeal. One is, that in determining whether the cause of the accident is proximate or remote, the same test must be applied to the conduct of the injured party as is to be applied to the defendant. The conduct of the latter cannot be judged by one rule and that of the former by some other rule. If in this case the motorman had been injured by the collision instead of the driver of the wagon, and the former had sued the latter for the injury, and the court had refused to charge that the motorman could not recover if his want of due care in the management of the car contributed to the injury, we would then have practically the same question as we have now, and I venture to suggest that there would then be little doubt with respect to the view the court would take in regard to an exception to such a ruling. Assuming that the driver negligently drove upon the track, and at the first moment of contact of the car with the wagon the motorman was killed or injured, could there be a recovery in his behalf irrespective of his neglect to manage the car with due care? Would it then be said, as it is now, in regard to the driver, that though the motorman was negligent, yet it was only the *Page 155 remote and not the proximate cause of the injury? It is also the settled rule in all actions of negligence that where several proximate causes contribute to an accident and each is an efficient cause, without which the accident would not have happened, it may be attributed to all or any of them, but it cannot be attributed to a cause unless without its operation the accident would not have happened. (Ring v. City of Cohoes,77 N.Y. 83; Taylor v. City of Yonkers, 105 id. 202; Searles v.Manhattan Ry. Co., 101 id. 661; Ruppert v. Brooklyn HeightsR.R. Co., 154 id. 90.) Assuming that the act of the deceased in driving upon the track in view of the approaching car was at least one of the causes of the accident without which it would not have happened, it is difficult to see why the defendant's counsel was not entitled to have the court charge the request as made. The question in this case turns upon the exception taken to the refusal of the learned trial judge to charge the general rule that the contributory negligence of the injured party will defeat a recovery. Conceding, as we do, that in some cases it will not, we do not think that this is such a case. It cannot reasonably be asserted that there was any new act of negligence on the part of the motorman that could deprive the defendant of the benefit of the general rule.
In the discussion to be found in the books upon this question, some expressions are used which, when applied to the facts of this case, are quite misleading. It is often said that a railroad may not run into a party though he is on the track through his own negligence, or run over him or run him down. No one questions that proposition when we bear in mind that these expressions imply a willful act, or at least an act which clearly might have been avoided by the exercise of due care. It would be somewhat of an exaggeration to apply these expressions to the facts of this case. The motorman did not run into the driver of the wagon or run over him or run him down, within any fair or proper meaning of those terms as used in the law of negligence. What happened was this: The driver attempted to cross the track diagonally when the *Page 156 approaching car was so near as to render the attempt dangerous. He took the chances on the alertness of the horse and his own capacity to so manage him as to get out of the way of the car. The motorman had reason to believe that the driver would succeed, so he did not stop the car, but took some chances just as the driver did; and it turned out that they both made a mistake in their calculations, since the hind wheel of the wagon did not get entirely over the track when the car collided with it. A few inches more and the wagon would have cleared the track, and it is probable that these few inches were lost by the diagonal course that the driver took. To say that under such circumstances the motorman ran the driver down or ran into him or ran over him is simply to describe an accident in very extravagant language. But it is said that such was the finding of the jury and such the import of the verdict. Grant that all that is so, still the fact remains that they reached that conclusion under a charge from the court which permitted them to disregard entirely the negligent conduct of the driver in taking such chances as he did and to consider only the question whether it was reasonably possible for the motorman to avoid the consequences of the driver's negligence. The case was thus made to turn upon the mistake of the motorman in assuming that the driver would get out of the way in time, and the conduct of the driver in going upon the track in the immediate presence of danger was thus eliminated from the case.
The form in which the case comes here is somewhat embarrassing. While the learned court below unanimously affirmed the judgment, it certified that there were questions of law involved which should be reviewed in this court, but there was no opinion, and hence we have not the benefit of the views of the court in regard to any of the questions in the case. All the questions of law presented by the record are involved in the exceptions which we have considered. In view of the plaintiff's theory that after the first contact of the car with the wagon it still kept up the speed and carried both the wagon and the horse farther on upon the track to the extent of *Page 157 forty feet or more, and then for the first time injured the deceased, there was a fair opportunity for the court below to reverse upon the facts in view of the evidence upon this point. But we must take the case as we find it, and, as the court unanimously affirmed the judgment, the sufficiency of the proof to support the plaintiff's theory of the facts cannot be considered. The exceptions, however, fairly presented the question whether the contributory negligence on the part of the deceased, that is to say, his act in driving upon the track, if negligent, was, under the circumstances of the case, a defense to the action, and, since we think there is nothing in the case to take it out of the operation of the general rule, the defendant was entitled to have the jury so instructed.
The judgment should be reversed and a new trial granted, costs to abide the event.