Settlemeyer v. Southern Railway

This is an action brought in 1910 to recover three thousand ($3,000) dollars for injuries alleged to have been received by plaintiff in 1909, while driving along the public highway leading from Cherokee Falls to his home in Gaffney, S.C. Plaintiff is a physician and had occasion to go to Cherokee Falls on a professional visit to a patient. It is alleged in the complaint that the defendant had left a freight can across the public highway or road, in violation of the statute law of this State, and in wilful disregard of the right of plaintiff and the public, and that by reason of blocking the said public highway *Page 153 the plaintiff was obliged, in crossing the railroad track to drive around and above the regular crossing. It is further alleged that this car gave out offensive odors, by reason of which plaintiff's horse was frightened and became unmanageable, and that after driving past the end of the car, the plaintiff was unable to bring his horse back into the public road or highway, and in his efforts to get away from the foul stench from the car ran violently against the bank of the cut, throwing plaintiff from his buggy and injuring him seriously. Defendant answered denying allegations of plaintiff's complaint, and setting up the defense of contributory negligence. At close of testimony in the case, upon motion of defendant, his Honor, Judge Aldrich, directed a verdict for defendant, under authority of Mason v. SpartanburgCounty, 40 S.C. 390. The grounds of motion were:

1st. Because the evidence fails to prove that the accident occurred on a public road, or any public road was obstructed by defendant.

2d. Because, even if this was a public road, and even if it was obstructed, the evidence fails to show that any notice was given to the defendant of any obstruction.

3d. Because, in any event, the evidence fails to show that the fright of the horse was caused by the car being on or near the road, or from any odor arising therefrom.

4th. Because the evidence shows that the proximate cause of the injury to plaintiff was the fright of the horse caused by a cage of rabbits on the platform of defendant's depot, and not by the car which it alleged was on the road.

There is no doubt but there was sufficient testimony in the case to carry it to the jury to determine whether it was a public road, and whether defendant obstructed it or not, and there is no question but that plaintiff received injuries. But even if the evidence established clearly that the road was a public highway, and was obstructed in violation of law, the plaintiff must go further and introduce evidence tending to establish the negligence which he alleges existed, and that *Page 154 that negligence was the proximate cause of his injury. In other words, even if the defendant was careless and negligent, as alleged in the complaint, if that carelessness and negligence on its part was not the direct and proximate cause of plaintiff's injuries he cannot recover.

If the facts in the case show that the injuries to the plaintiff were not the natural and probable consequences of the alleged acts of negligence of defendant set out in the complaint, then his Honor committed no error in directing the verdict for defendant. What acts of negligence does the plaintiff allege in his complaint as to the cause of his injury? Complaint alleges that the defendant had carelessly and negligently left a car across the public road or highway. That it "smelled very foully" and gave forth a great stench, that "plaintiff's horse was made afraid and became very much frightened by reason of the foul smell and great stench arising from the car, became unmanageable, and the plaintiff, after driving past the end of the car, was unable to bring his horse back into the public highway, but the horse in his fright became unmanageable, and in surging and making a violent effort to get away from the foul smell of the car which had been left standing across the public highway, as aforesaid, ran violently against a bank of the cut of the railroad, which came down even with the public road on the opposite side of the other roadbed just before the public crossing; that by reason of which plaintiff was thrown violently from his buggy and was greatly hurt and painfully injured." The complaint, in substance, charges that by the negligence of defendant in obstructing the highway with its car, and the foul smell emanating therefrom that his horse became unmanageable, frightened and ran away, injuring him after he had driven past the car. Now, what does plaintiff testify as to what frightened his horse?

"You receive any information that made it necessary for you to return to Gaffney? Yes, sir; just after four o'clock I left the company store on my way to Gaffney. *Page 155 coming up towards the depot. In about 150 yards of the depot I let the top of my buggy down, put my lines down; it may have been 200, 150 or 200 yards below; I went on, the horse was in a walk. I went uninterruptedly until I turned the corner of the depot platform. On the lower corner, I suppose you would say towards the river or next to the road. Just as he was turning that corner, he raised his head and blowed, snorted or whatever you may call it; at the time, I noticed he was mighty excited. What did he do? He stepped backwards two or three steps, I hollered `whoa' and stopped him with the lines, intended to jump out and catch him, catch the lines. My first intention was to turn back toward Cherokee Falls. I noticed the road was blocked with a car, and on the corner of the platform, just below the corner, I suppose half way between the corner and the door of the depot, was a box of jack rabbits. Go ahead. A box of jack rabbits. These jack rabbits were making a fuss, flustrating. I mean shaking the box, a wire top box. Just about that time the horse sprang forward with me, with all his might. There was an opening between the car and a coal pile up at the sidetrack. The horse was moving towards that. I thought he was going down the cut. I seen there was no other way to escape, but when he went past the car he turned to the right towards the road, and in doing so he went right over the high bank, and just as I saw the buggy was going to strike the high bank, I grabbed a wire with my left hand, a kind of silver wire around the seat, and when it struck, it threw me up full length, but I struck back in, struck in the cushions. My right hand struck outside. After going over the bank, just on the other side there is a ditch, a side ditch of the road. What was the first indication that you had from your horse that he was frightened? What was the first thing that he did that convinced you that he was frightened? He raised his head and snorted loudly, and then he stepped backwards, possibly two steps, and just at this instant he *Page 156 rushed forwards. Just as he rushed forwards what were you doing? I was sawing him with the lines all that I could. I was pulling, trying to stop him. Was it then your intention or not to go on by the cars? I was trying to go back by Cherokee Falls. I saw that he was too much excited, and I saw that it would be hard to get him to go by. What prevented you from turning back to Cherokee Falls? I suppose it was these rabbits giving this second flustration. Before you could turn him towards Cherokee Falls your horse rushed forward with all his might? Yes, sir. Now, what was all along here at the time this accident occurred? Back here was shingles. All along here? Yes, sir; stacked up I think about ten or twelve feet high. The shingles were on the side of the road, and when the horse backed I thought he was going to run into this pile of shingles. Do you remember where these rabbits were sitting? This is the depot here. The door there. These rabbits were just about the corner of that depot proper. Not the corner of the platform? No, about the corner of the depot proper. I believe you say that just at the time your horse ran back that the rabbits were making a noise? Yes, sir; I heard the noise myself that they were making, a great deal of noise, and they were not only doing that, but they were flustrating the cage. Were they making that noise before that time? No, sir. Did you see the rabbits about that time? Yes, sir; I noticed it just as I was passing. At the point where I place figure `1' is it intended to represent the cage of rabbits? Yes, sir. Your horse with reference to that cage of rabbits, your horse when it began to get frightened, where was it? He had turned about the length of the horse around the corner. I will put a cross mark near that point. Yes, sir. What is the distance from the cage of rabbits to the corner of the platform? How close were the rabbits to the corner of the platform? I think they must have been about eight or ten feet, about eight. The first sign that you saw of the fright of the horse, *Page 157 the horse became frightened just as you were passing or had passed the cage of rabbits? Yes, sir. When it came in front of that car. They were jumping, surging and shaking the cage. When I passed them they were all of them very quiet. So just when you passed them they began to make that noise and jump? Yes, sir; after the horse blew or snorted. Then they began to jump and surge? Yes, sir."

A careful examination of all the evidence will not show that any inference can be drawn that the cause of the horse's fright was any of the allegations of negligence specified in the complaint, but on the contrary, the conclusion must be reached that the cage of jack rabbits on the platform of defendant's depot was the cause of the horse's fright, and while the highway might in part have been obstructed by the car, plaintiff had room to cross said highway and did get over it without collision with the car. The defendant had the right to put the rabbits on its platform at depot. That is what platforms and depots are erected for, and it had the right to unload its cars there and to haul shows, wild animals, and any other freight in the way of its business. The rule on the subject of proximate consequences, is thus stated in Harrison v. Berkley, 1 Strob. 525, and quoted with approval in Pickens v. Ry., 54 S.C. 498,32 S.E. 567: "Only the proximate consequences shall be answered for (2 Greenleaf Ev. 210, and cases there cited). The difficulty is to determine what shall come within that designation. The next consequence only is not meant, whether we intend thereby the direct and immediate result of the injurious act, or the first consequence of that result. What either of these would be pronounced to be, would often depend upon the power of the microscope with which we should regard the affair. Various cases show that in search of the proximate consequences, the claim has been followed for a considerable distance, but not without limit, or to a remote point (8 Taun. 535, Peak's Cases 205). *Page 158 Such nearness in the order of events, and closeness in the relation of cause and effect, must subsist, that the influence of the injurious act may predominate over that of other causes, and shall concur to produce the consequence, or may be traced in those causes. To a sound judgment must be left each particular case. The connection is usually enfeebled, and the injurious act controlled, where the wrongful act of a third person intervenes, and where any new agent, introduced by accident or design, becomes more powerful in producing the consequences than the first injurious act (8 East. 1, Lesp. 48). It is, therefore, required that the consequences to be answered for should be natural as well as proximate (7 Bing. 211, B. Ad. 645)." Here if defendant was negligent as complained of, these acts of negligence did not produce the fright of his horse, but an independent cause intervened and produced that fright, to wit: A cage of playing jack rabbits. In Brown v. LaurensCounty, 38 S.C. 282, 17 S.E. 21, a nonsuit was granted and sustained by the Supreme Court. The facts of that case were, plaintiff was driving her horse and buggy on a bridge across a public stream, the horse shied at a piece of timber which had been put there for the purpose of repairing the bridge, and the buggy was backed over the side of the bridge at a point where there was no side railings, and plaintiff was thrown into the stream and injured. At close of plaintiff's testimony, defendant moved for anonsuit on the grounds that the cause of the injury was, "a frightened horse, not a defective bridge." This case was followed by the case of Mason v. Spartanburg, 40 S.C. 390. 19 S.E. 15, the case relied on by Judge Aldrich on Circuit.

The plaintiff's injury in this case was caused by a frightened horse. The horse was not frightened by any of the acts of negligence set out in plaintiff's complaint as a direct and proximate cause of his injury, and to allow a recovery in such a case would, in my opinion, inflict untold annoyance. *Page 159 litigation and injury, and would be a most pernicious and dangerous doctrine to establish.

I think the Circuit Judge was right, and the judgment of the Circuit Court should be affirmed.

MR. CHIEF JUSTICE GARY concurs.