After full examination, we are of the opinion that tbe record contains nothing which at all changes tbe legal aspect of this case from what it was when here before, and that every question now presented, except perhaps as to state of tbe evidence upon tbe question whether tbe pole would bave fallen bad Shade-wald removed tbe guys from this building in a proper manner, is res adjudicata, under the decision on the former appeal, 48 Minn. 433, (51 N. W. Rep. 225.)
Tbe pole which broke was a “corner pole” situated at an angle in tbe street, and was subject to tbe lateral strain of 114 No. 14 line wires strung on tbe cross-arms, and drawn taut to prevent sagging. Tbe evidence was practically undisputed that tbe pole was entirely *44insufficient to bear this strain, unless supported by guys, or some other similar means of support.
The defendant, for the purpose of showing that it did its duty in the premises, introduced evidence proving that it had, with the license of Shadewald, extended guy wires from the top of the pole to his building on an adjacent lot, and that as thus guyed the pole was perfectly safe, and would not have fallen; that Shadewald cut the guys; and that this was the immediate cause of the falling of the pole. For the same purpose, defendant also introduced evidence tending to prove that Shadewald had not revoked the license a reasonable time before cutting the guys to enable it to secure the pole by other means, and hence that his act in cutting the guys was unlawful, for the consequences of which it was not responsible. On the other hand, the plaintiff introduced evidence tending to prove, and from which the jury might have found, that, a reasonable time before cutting the guys, Shadewald had revoked the license, and required defendant to remove the guys from his building, but that it neglected to do so, or to secure the pole by other means. It is contended that this evidence was inadmissible under the pleadings, and that to admit it was to permit the plaintiff to recover upon a different cause of action from that alleged, which was that the defendant negligently suffered and permitted this pole “to become rotten and worn out, and not of sufficient strength” to bear the weight and strain of the wires strung upon it.
It will be observed that the plaintiff only followed the line of proof adopted by the defendant itself. But an examination of the opinion of this court on the former appeal will show that the admissibility of this evidence under the pleadings is really res adjudicada in this case. It was there held that, upon the expiration of a reasonable time after the revocation of the license, Shadewald had a right, as to defendant, to remove the guys from his building; that it became the duty of the defendant, within á reasonable time after the license was withdrawn, to make the pole safe by other means, and that the omission to do so would constitute negligence; that after the license was withdrawn the defendant was in the same situation as if it had never been granted, — in other words, being bound to know that Shadewald had a right to remove the *45guys, and might do so,” the defendant, in omitting to adopt other methods of making the pole safe, stood in exactly the same position as if it had in the first instance erected the pole, and strung its -wires thereon without the support of any guys. Under this view, of the law the admissibility of the evidence under the pleadings must be apparent.
The defendant further contends that the evidence shows that the pole would not have fallen, even with the guys removed, had Shadewald removed them in a proper and reasonably prudent manner, viz. instead of cutting them, and thus throwing the strain on the pole suddenly, attaching blocks so as to release the strain gradually. The proposition of law predicated on this premise is that, even if defendant was bound to ánticipate that Shadewald might remove the guys, it was not required to anticipate that he would do it in an improper and negligent manner, and is not responsible for the consequences of his negligence, which, it is claimed, constituted an independent intervening cause, which alone was the proximate cause of plaintiff’s injury. Inasmuch as defendant asked for no instructions to the jury on this point, and as no such question was submitted to their consideration in the court’s charge,— to which no exception was taken, except to the refusal to direct a verdict, — the question is not in the case, unless the evidence was such as to require a finding in accordance with defendant’s contention. ' While some of defendant’s witnesses testified that in their opinion the pole would not have fallen, had Shadewald let the strain come upon it gradually, in the manner suggested, yet in our opinion there was abundant evidence in the case to justify the jury in finding that the inevitable consequence of removing the guys, in any possible manner, without supplying their place with other supports, would have been the falling of the pole. Indeed, when we take into account the great lateral pressure resulting from that number of wires upon a corner pole only 14 inches in diameter at the ground, of comparatively brittle wood, and whose power of resisting the tensile strain on one side, and the compressive strain, on the other side, had been materially reduced by dry rot extending from the circumference inward two or three inches, it seems to us that the great preponderance of the evidence is to the effect that the pole must necessarily have fallen when the guys were removed. As *46already suggested, every other question in the case is res ctdjudi-cata, under the decision on the former appeal, and it is an established rule in all courts that they will never reverse themselves in the same case except on reargument allowed on petition before the case is remanded to the lower court. On the former appeal this court held “that, if' the pole was likely to fall with the wires cut, then it might be negligence towards those passing in the street to cut them without warning. But that his [Shadewald’s] negligence contributed to the injury does not absolve the defendant. Suppose the jury had found, as the evidence would have justified, that but for the cutting of the wires the pole would not have fallen, and that it would not have fallen, with the wires cut, but for the neglect of the defendant, after the license was revoked, to make the pole safe, — in other words, that it was the co-operation of defendant’s negligence and Shadewald’s act that produced the injury, — then it would be a case of concurring negligence, in which case each party guilty of negligence is liable for the result. The negligence of each is a proximate cause, when the injury would not have occurred but for that negligence.”
(Opinion published 55 N. W. Rep. 829.)Personally, I am not prepared to commit myself to the correctness of this doctrine, as applied to the facts of this case. Undoubtedly, defendant was bound to foresee that Shadewald might remove these guys, but it could not anticipate that he would do it negligently, so as to allow the pole to fall in the street without warning to passers by. But negligence, not wanton, cannot ordinarily be said to be the proximate cause of an injury, when the negligence (which could not have been reasonably anticipated) of another indi-pendent human agency has intervened, and directly inflicted the injury. Hence I am not clear but that, on the state of facts supposed, the negligence of Shadewald would be the sole proximate cause of injury. But, however that may be, the question was settled on the former appeal, and on- the second trial the court followed the exact lines laid down by this court
Order affirmed.
Vanderburgh, J., absent, took no p.art.