This is the second appeal of this case, and a statement of it and the opinion on the first appeal will be found in 98 Ark. 413 (Helena Gas Co. v. Rogers).
The case was reversed on the former appeal for the error of giving and refusing instructions requiring a higher degree of care of the gas company in guarding excavations made by it in-the streets of a city to protect the public from injury therefrom than the law warranted, and upon the last trial, upon which the facts were developed substantially as upon the first, the court properly instructed the jury upon the measure of care required by the gas company, and refused, over its exceptions, to give its request for a peremptory instruction and instructions numbered 4 and 10, as follows:
“4. You are instructed that the burden is upon the plaintiff to establish to your satisfaction, by a preponderance of testimony, that the negligence charged against the defendant was the proximate cause of the injury to plaintiff’s intestate. And, in order to establish proximate cause, it is necessary in the first place that there be a direct connection between the negligent act and the injury, and that such act be the direct cause which set in motion the circumstances leading up to the injury, and which, in natural and continuous sequence, unbroken by any new or intervening cause, produced the injury; and, unless you are so convinced, it is your duty to find for the defendant.”
“10. The measure of damages is also affected by the expectancy of the'widow, and, in addition to what has been given you on the measure of damages, you are also instructed that the pecuniary loss of the widow is limited to her life expectancy, as you may find from the proof.”
The jury returned a verdict against it and from the judgment appellant brings this appeal.
It is urged, first, that the court erred in refusing to give a peremptory instruction for appellant, it being contended that its negligence, if any there was, was not the proximate cause of the injury.
The question of proximate cause, as this court has already said, is not one of science or legal knowledge, and is a question ordinarily for the jury, to be determined as a fact from the particular situation, in view of the facts and circumstances surrounding it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments. Pulaski Gas Light Co. v. McClintock, 97 Ark. 584. It is generally held, however, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 476, 24 L. Ed. 256; Gage v, Harvey, 66 Ark. 68; St. Louis, I. M. & S. Ry. Co. v. Bragg. 69 Ark. 402. It is not necessary that the effect of the act or omission complained of would in all cases, or even ordinarily, be to produce the consequences which followed, but it is sufficient if it is reasonably to be apprehended that such an injury might thereby occur to another while exercising his legal right in an ordinarily careful manner, or, in other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated as likely to result in injury to others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen. Pulaski Gas Light Co. v. McClintock, supra; Foster v. Chicago, R. I. & P. Ry. Co., 127 Iowa 84, 4 Am. & Eng. Ann. Cas. 150; Baltimore & O. Rd. Co. v. Slaughter, 167 Ind. 330, 7 L. R. A. (N. S.) 597.
There was a disputed question of fact as to the care exercised by appellant in guarding the excavation made by it, to protect persons rightfully using the streets and sidewalks from injury on account thereof, and the question whether it had exercised the care required by law, as well as whether its negligence was the proximate cause of the injury, weré properly submitted to the jury.
It was within the jury’s province to determine, from the facts and circumstances surrounding the accident and injury, whether it was the natural and probable consequence of the negligence of the defendant in digging the hole and leaving it unguarded, and they determined it against appellant under instructions from the court that fairly submitted the question.
It is argued that appellant could not possibly have contemplated the injury that did occur because of the negligent failure to keep the excavation covered, but it was not necessary that it should have foreseen the particular injury in order to be liable, but only that such an injury, or an injury of some kind, might occur to another while in the exercise of his legal rights in an ordinarily careful manner because of such act.
It is also well known that horses are more or less prone to scare and shy at different objects along the streets and deflect from the beaten tracks, and public highways should be built and maintained in such a manner as to provide for the ordinary shying and starting of horses and the consequent deviation, as said in St. Louis, I. M. & S. Ry. Co. v. Aven, 61 Ark. 141.
It is no defense to appellant’s negligence to say that the injury would not have occurred if the horse had continued along the street and had not shied and run away, for it would not have occurred had it exercised the proper care to protect the traveller against just such an incident which was likely to occur. There was no intermediate cause disconnected from the primary fault and self-operating which produced the injury, and its negligence was the proximate cause of 'it; for, even if the running away of the horse be considered a concurring cause, it does not prevent the liability of the appellant to answer for the negligence but for which the injury would not have occurred. Pulaski Gas Light Co. v. McClintock, supra; St. Louis, I. M. & S. Ry. Co. v. Aven, 61 Ark. 141; Strange v. Bodcaw Lumber Co., 79 Ark. 490; Waters-Pierce Oil Co. v. De Selms, 212 U. S. 177, 53 L. Ed. 463; Pugh v. Texarkana Traction Co., 86 Ark. 36; S. W. Tel. & Tel. Co. v. Myane, 86 Ark. 548; The G. R. Booth, 171 U. S. 450.
The jury were told, • that, if appellant’s negligence was one of the concurring proximate causes of the injury, it would be liable therefor, and the only duty incumbent upon it in the making of the excavation was to use ordinary care to prevent an injury liable to result therefrom; and from all the instructions the jury understood that the appellant had the right to dig the hole as it did for the erection of the post, and was only bound to the exercise of ordinary care to keep and maintain it in a proper and safe condition to prevent injuries that were likely to happen as the natural and probable consequence of it being left uncovered, and there was no error in refusing requested instruction numbered 4.
If it be conceded that said instruction was a correct technical definition of proximate cause, it would not have benefited the jury in arriving at a proper decision of the issue before them, since, from it, they could not readily have understood that if the injury was the natural and probable consequence of the act of negligence complained of, under the circumstances of the case, such as might and ought to have been foreseen by the appellant as likely to occur or flow from said act, then it was the proximate cause for which it would be liable.
The only effect of instruction numbered 4, if given, would have been to confuse, instead of enlighten, the jury, and no prejudicial error was committed in refusing it.
As to requested instruction numbered 10, we have concluded that it is a correct declaration of the law.
Under our statute and decisions, two causes of action may arise out of the death of a person caused by the wrongful act of another, the one for the benefit of the estate of deceased and the other for the benefit of the widow and next of kin; the suits are prosecuted in different rights, and the damages are given upon different principles to compensate different injuries, and the next of kin are only entitled to damages for the pecuniary loss occasioned by the death alone. Sections 6289 and 6290, Kirby’s Digest; Railway v. Davis, 53 Ark. 117.
This being true, the measure of damages for the estate’s benefit assessed upon the first count or paragraph of the complaint could not, in any event, have been affected by the widow’s life expectancy; but since the measure of damages in the action for the pecuniary loss resulting from decedent’s death was for the exclusive benefit of the widow in this case, it was affected by her life expectancy, as said instruction correctly told the jury. She was not entitled to recover damages for pecuniary loss during the entire life expectancy of her husband, if her own life expectancy was not for as long or a longer period than his. In other words, no pecuniary loss because of the death of the husband could result to a wife after the end of her life expectancy when the law presumes she would be dead.
The courts have frequently held that the damages are to be measured by the shortest expectancy of life, that- is, if the person entitled to recover was not expected to live as long as the one for whose death the cause of action arose, then the expectancy of life of the person entitled to compensation would control. Fordyce v. McCants, 51 Ark. 509; The Dauntless, 121 Fed. 420; Illinois Cent. Rd. Co. v. Crudup, 63 Miss. 291; Miss. Cotton Oil Co. v. Smith, 48 So. 735; Duval v. Hunt, 15 So. 876.
It is true these are all cases in which the persons recovering damages were parents injured by the death of a child whose expectancy of life, of course, was longer than theirs, and we have found no case of like kind of a suit for pecuniary injury to the widow for the death of her husband, but the principle is the same in any event, because she could not be pecuniarily damaged because of the death only during her life, and should not receive compensation for the injury for a longer period than she was expected to live.
There was no testimony showing the age of the widow nor her life expectancy, and we have not been able to determine whether the verdict is larger than it ought to be on that account.
If the instruction had been given, the jury might have reckoned the expectancy of life of the widow from her appearance before them, in the absence of other proof; but we can not presume that her life expectancy was equal to or greater than that of the deceased and that no prejudice resulted from the failure to give an instruction which properly defined the measure of damages on that cause of action considered with the instructions given on that point.
For this error, the judgment is reversed and the case remanded for a new trial on the cause of action for pecuniary loss to the next of kin, and affirmed as to the judgment on the cause of action for the benefit of decedent’s estate.