I dissent from the majority opinion rendered by Mr. Justice Bonham for the reason that I do not consider that the error complained of was of probable ill consequence to the appellant, and therefore think it was harmless. Had there been no other instruction to the jury as to what constituted proximate cause, then the contention as to its serious import would have been well founded.
But at the very outset of a clear, concise, and correct statement of the law as to negligence, contributory negligence, and proximate cause, after having fully enumerated the various specifications of alleged negligence on which *Page 361 plaintiff sought to recover, Judge Sease expressly charged the jury: "Now, it is not necessary for the plaintiff to prove all of the specifications of negligence; if he has proven one or more of them by the preponderance of the testimony,and that was the direct cause of his damage and injury, itis sufficient to recover upon, unless the defendant has proved by the preponderance of the testimony that the plaintiff contributed to his own damage and injury in some one or more of the specifications of contributory negligence alleged in the answer." (Italics ours.)
And in further effort to give the jury a clear meaning of what is meant by proximate cause, Judge Sease said: "Now, it makes no difference how negligent a person is, if no damage results proximately from that negligence no recovery can be had. It is not `approximate,' it is a legal term, `proximate,' and is such a cause as operates to produce particular consequences without the intervention of any independent cause, without which the injury would not have occurred. It is the real cause, the efficient cause, without which the injury would not have occurred." (Italics ours.)
And immediately follows a very apt illustration as to what proximate cause really is.
Applying the very sane and oft-repeated rule of this Court that when, in looking at isolated expressions, which, when taken without connection with other parts of the charge, might appear to be error, the whole charge must be looked at to see if the correct law was given, I think it very apparent that this charge must be held generally to have correctly announced the law, and that the jury could not have probably been misled by the request as given.
It seems to me that the error complained of comes within that class which at the time of utterance pass unnoticed by Judge, counsel, and jury, and become apparent only when counsel procures the transcript of the case, settles himself quietly in his office, puts on his glasses, concentrates upon it his differentiating, discerning mind, scrutinizes it with *Page 362 his critical eye, and finds the error slowly rising out of the cold typed words as the hidden star gradually yields its likeness under the delicate lens of the patient astronomer.
It may be that the wish is father to the thought; but the writer, after years of experience on the Circuit bench, with its variety in character of cases, going out of one in which many principles of law are involved and have to be declared into another with as many or more principles but of entirely different aspects, going from day to day into case after case, making rulings "right off the bat," delivering charges on intricate phases of law with only the time engaged in argument to reflect upon the law and requests to charge (and sometimes they come by pages and pages), knows only too well how difficult it is for the trial Judge to run the gauntlet of so many encompassing difficulties and "get by" without having done something, or said something, that may have been found to be imperfect, incorrect, or inconsistent.
I think the judgment of the Circuit Court should be affirmed.