(dissenting)—
“I have the misfortune to differ from the Lord Justice Cotton, and I do so with a deep sense of the probability *344that he is right. . . . ” Bowen, L.J., In re Haseldine, 31 Ch.D. 511, 517 (1886).
The above describes my state of mind after reading plaintiff’s evidence and briefs, studying the exhibits, listening to oral argument, and studying the majority opinion.
I cannot, however, bring myself to the conclusion that defendant’s negligence was the proximate cause of Mr. Adler’s death. Stated differently, I believe the facts are sufficient to place this case under the rule that
“The defendant will ordinarily be relieved of liability by an unforeseeable and abnormal intervening cause which produces a result which could not have been foreseen.” Prosser, Law of Torts (2d ed. 1955) § 49, p. 266.
I grant that the rule is one of limited application
“. . . and it is only when they [intervening acts of third parties] are so foolhardy or unusual that they cannot be regarded as any normal part of the risk, that they will be considered a superseding cause.” (Ibid. § 49, p. 272).
The boat was made of wood; it did not sink; there is no question of the boat remaining afloat. It was found about 5 a. m. the next morning upside down on the beach of Maury Island. The 35-horsepower motor was on the transom; gas cans, fuel, a fire extinguisher and “ a few other things, personal gear ...” were still aboard.
One who operates a boat on navigable waters claims for himself, and indicates to those who accompany him, some knowledge and competence in its operation. The record is devoid of any indication that Mr. Millholland, the operator, had any previous experience. I have not overlooked his statement that
“. . . when it [the boat] hit a choppy condition it would slap down, but I was used to it and it did not concern me at all.”
The crux of plaintiff’s case is defendant’s negligence in renting a boat with a defective patch on the bottom. A number of plaintiff’s witnesses described the patch. It is illustrated by numerous photographs.
Exhibit No. 13, introduced by defendant, is a portion (approximately 2% feet by 2% feet) of the boat’s plywood bottom and a section of the keel to which it is attached.
*345The patch in question, inserted into the hull, is 8% inches by 15 inches. The patch is in the cabin, between frames 3 and 4, thus forward of the bulkhead between the cabin and the cockpit. The butt block, placed over the patch on the inside of the hull, is 13 inches by 20 inches. The inboard edge of the butt block is 2 inches from the keelson.
The afterend of the patch and the corresponding 2-inch overlap of the butt block are separated from the hull and push inward. The break extends an additional 5% inches so that the opening is approximately 14 inches athwartship. This extends the break 4 inches beyond the butt block inside the hull. The trial court observed:
“The testimony of the men who examined the boat at that time [when found] varied the depression from one inch to three inches.”
Three of plaintiff’s witnesses who examined the boat on the beach testified that they examined the patch both on the outside and inside of the hull. I believe it significant that the opening can be closed by exerting very little pressure.
Since man has ventured upon water he has been plagued with water in the bilge of his boat. Emergency treatment of the problem is not technical; the procedure is simple.
First, find how and from where the water is entering; second, try to stop it; third, remove the water already accumulated.
Mr. Millholland did not enter the cabin after water was discovered in the cockpit. His statement that “We could not tell where the water was coming from, but we knew it was coming,” is accurate; he did not look.
Mr. Williams testified that “. . . the first thing I thought of was bailing.” He and Mr. Adler entered the cabin to look for something with which to bail. Mr. Williams saw no water in the cabin. Mr. Millholland testified “ . . . I more or less ordered them out of there.”
Had any of the three men looked, the source of the water would have been discovered. A buoyant life cushion or a mattress (photograph shows two bunks aboard) (Exhibit *3463) placed over the break and the application of slight pressure would have stopped water entering the hull.
The boat was under way when it listed, throwing Mr. Williams, Mr. Adler, and Mr. Millholland’s son into the water. Mr. Millholland testified:
“Q. After they were thrown into the water, what happened? A. Then I dove in. The boat was at such an angle that maybe it would have gone over anyway, but anyway, in any case, when I saw my son go into the water I plunged in after him. Q. You went to your son’s aid? A. I don’t know about his aid, but I wanted to be with him. Evidently my leaving the boat, or all of us leaving the boat relieved the chopping condition.”
As stated in the majority opinion,
“It [the boat] circled its former occupants twice and then went away from them. The engine ran for four or five minutes; the mast lights were visible for another four or five minutes; and then it was no longer visible.”
Mr. Millholland also testified that the boat may have been 50 yards or 250 yards from them when the motor stopped; Mr. Williams said the boat was about a block away when he last saw it. They “ . . . were about in the middle of the channel, . . . ” which, at Point Robinson, is about 2 miles wide; yet they started to swim “. . . for what would ordinarily be the nearest shore.”
Thus the sole means of survival under the control of the former occupants of the boat, which remained afloat, was abandoned.
Where, in the sequence of events between the original default and the final mischief, an entirely independent and unrelated cause intervenes, and is of itself sufficient to stand as the cause of the mischief, I believe it becomes the sole proximate cause. No amount of human foresight which could reasonably be exacted as a duty from defendant could anticipate the abnormal, unusual, and highly extraordinary conduct and events immediately preceding Mr. Adler’s drowning.
For these reasons, I dissent.
Donworth, J. concurs with Weaver, J.