(dissenting-). The following statements of facts is made by the court: “There was evidence tending to show that the cattle did not reach Brady on the day specified because of the negligent delay in shipment by appellant and connecting carriers; that but for such delay the cattle would have passed the place en route and have been delivered before the unprecedented floods came that washed away a bridg-e which thereafter rendered it impossible to deliver the cattle at the place of destination in time for the auction sale. The testimony on behalf of appellant tended to show that the cattle would have reached their destination on the Saturday morning of the day that the auction sale took place but for the fact that a certain bridge was washed away by unprecedented floods, which delayed their transportation for several days.”
It is stated in the opinion of the court: “The court in effect told the jury that, even if the cattle would have reached Brady in time for the auction sale but for the act of God, still if they were negligently delayed before reaching the obstruction and but for such negligent delay would have passed beyond the point of obstruction before the obstruction occurred, the appellant would be liable.” This court sustained this instruction.
I think that the “unprecedented floods” were the proximate cause of the loss sustained by appellee, and that the appellant was not liable for losses on account of delay, which was not the proximate cause.
Wharton says: “Negligence is the juridical cause of an injury when it consists of such an act or omission on the part of a responsible human being, .as in ordinary, natural sequence immediately results in such injury. Such, in fact, we may regard as the meaning of the term 'proximate cause,’ adopted by Lord Bacon in his Maxims. The rule, as he gives it in Latin, is ‘In jure non remota causa sed próxima spectatnr,’ which he paraphrases as follows: 'It were infinite for the law to consider the causes of causes, and their impulsions one of another. Therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking for any further degree.’ ” Wharton on Negligence (2 ed.), § 73.
Chief Justice Cockrill, speaking for this court, in Railway Company v. Neel, 56 Ark. 279, 287, said: “In actions of this description the injury complained of must be shown to be the direct consequence of the defendant’s negligence. This is the only practical rule which can be adopted by courts in the administration of justice. It is not enough that the act charged may constitute one of a series of antecedent events without which, as the result proves, the damage would not have happened. Hoadley v. Transportation Co., 115 Mass. 304. The rule is illustrated by a variety of cases, and is sustained by an unquestioned line of authority. Little Rock Railway Co. v. Talbot, 47 Ark. 97; Martin v. Railway, 55 Ib. 510; St. Louis, etc. Railway v. Commercial Insurance Co., 139 U. S. 223; Dubuque Wood Co. v. Dubuque, 30 Iowa 176.”
In Atchison, T. & S. F. Rd. Co. v. Stanford, 12 Kan. 377, Justice Valentine said: “In law, proximate and remote causes and effects do not have reference to time, nor distance, nor merely a succession of events, or to a succession of causes and effects. A wrongdoer is not merely responsible for the first result of his wrongful act, but he is also responsible for every succeeding injurious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural, and probable consequence of his wrongful act. He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting distinct and separate events, provided they all necessarily follow from the first wrongful cause. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, but, if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result is to be considered in law as the proximate result of the first wrongful cause. But, whenever a new cause intervenes zvhich is not a consequence of the first wrongful cause, zvhich is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for zvhich the final injurious consequence would not have happened, then such injurious consequence must be deemed to be too remote to constitute the basis of a cause of action.”
Wharton on Negligence says: “Even when the rule is that casus must be ^heritable’ to be a defense, the tendency of authority is to treat as inevitable such/disasters caused by storms and sudden extremes of temperature as could not have been averted except by an intensity of -diligence beyond that which is usually exerted by a common carrier who brings to the duties in question experience and capacity adequate to their discharge.” He gives many illustrations of this rule. AVharton on Negligence ’(3 ed.), § 558.
After giving many illustrations of what constitute concur-' ring causes he says: “At the same time it has been ruled that when a loss is attributable to a peril from which the carrier is by law exempt, liability is not .imposed on him by the fact that the goods would not have been exposed to the peril but for his negligent delay.” Ib. § 559.
In Rodgers v. Missouri Pacific Railway Co. (Kan.), 88 Pacific Reporter, 885, the “plaintiff sued the railroad company for the value of a car load of corn. The right to recover was predicated upon the defendant’s negligence. The corn was delivered to the company at Frankfort on May 22, 1903, for transportation and delivery to the plaintiff’s agent at Kansas Citv. Mo. The loaded car stood on the track at Frankfort until May 28, when it was hauled to its destination only to be overtaken and destroyed by the unprecedented flood of May 30, 1903, before it was delivered by the defendant. The delay was protracted through the negligent omission of the company to move the car. The flood was an act of God.” The court, after a review of authorities at great length, said: “The court is of the opinion that the negligent delay of a carrier in moving goods intrusted to it for transportation, not so unreasonable as to amount to a conversion, will not render it liable for the loss of such goods after they have been carried to their destination, if they are destroyed by an act of God before delivery.” The authorities referred to in the opinion are here cited.
In Morrison v. Davis & Co., 20 Pa. St. 171, goods being transported on a canal were injured by the wrecking of the boat, caused by an extraordinary flood. It w.as shown that a lame horse used by the defendant delayed the boat, which would otherwise have passed the place where the accident occurred in time to avoid the injury. The court held that the proximate cause of the disaster was the flood. Railway Company v. Reeves, 10 Wall. 190; Denny v. New York Central R. Co., 13 Gray 481.
In Martin v. Railway Company, 55 Ark. 510. the defendant contracted with a compress company to transport all cotton brought by its owners to the warehouse of that company in Little Rock to its compress in Argenta, but neglected to do so until a large quantity of cotton accumulated at the warehouse and in an adjoining street and caught fire and destroyed plaintiff’s cotton. Pie sought to recover of the defendant the value of his cotton so destroyed. This court said: “The mere failure of the defendant to perform its contract with the compress company was in no wise the juridical cause of the fire. There was no direct connection between the neglect of the defendant to furnish transportation according to the contract, and the fire. The failure to furnish cars was one of a series of antecedent events without which, as the result proves, the fire probably would not have happened, for if the cotton had ¡been removed there might have been no fire. But it was not the direct and proximate cause, and did not make the defendant responsible for losses caused by the fire. St. Louis, etc. R. Co. v. Commercial Ins. Co., 139 U. S. 223.”
In lames v. James, 58 Ark. 157, appellees delivered to the appellant cotton, which he agreed to gin on the following Monday. He failed to do so and on the following Thursday the cotton was destroyed by fire. This court held that the failure to gin the cotton within the time agreed was not the proximate cause of its destruction. Justice Wood, delivering the opinion of the court, said: “True, we might say if the cotton had been ginned on Monday, and carried away on Tuesday, it would not have been burned on Thursday. To use language similar to that employed * * * in the case of Martin v. Railway Co., 55 Ark. 521, the failure to gin on Monday, was one of a series of antecedent events without which the loss would not have occurred, but such failure was in no sense the proximate cause of the loss”
In Martin v. Railway Company and James v. James, cited above, there was no causal relation between the negligence charged and the loss sustained. The delay in the first two cases did not produce the fire, and the delay in the last case did not produce the flood. In the first two the delay was not the juridical cause of the fire, and in the last it was not' the juridical cause of the flood. The fires and flood were not the consequences of the delay. They were unconnected with and independent of the delay. The delay was no more the concurring cause with the fire in causing loss in the two cases than it was with the flood in causing the loss in the case at bar. All that can be said in the two cases in this connection is, that if there had been no delay the fire would not have destroyed the cotton, and the flood would not have prevented the delivery of the cattle in time; and so it might be said that if Miles had ■shipped his cattle at an earlier day they would have been delivered in time, and he would, have incurred no loss. But this, we have seen, is not sufficient.
The total loss of the cotton and the loss sustained in the market value of the cattle do not determine the proximate cause. As the opinion of the court seems to say or imply in distinguishing the case at ¡bar from the two cases in which cotton was destroyed by fire. The damages or the extent of them did not produce Üip proximate cause, but the proximate cause produced the damages.
For the reasons given I dissent from the opinion of the court.