Tbis case was bere before upon tbe appeal of plaintiff from a judgment of nonsuit, and will be found reported as Henderson v. Powell and Rattley v. Powell, 221 N. C., 239. (For summary of facts, see tbat case.) Tbe defendants bad prevailed in tbeir motion for non-suit upon tbe evidence upon tbe theory either tbat tbe trial disclosed no evidence to go to tbe jury upon tbe issue of defendants’ negligence, or tbat such negligence was insulated by tbe intervening negligent conduct of McCrimmon, tbe driver of tbe car in which Rattley, tbe intestate, was a guest when killed. Tbe decision of tbis Court was adverse to tbe defendants upon both points, and tbe case was sent back for a new trial, without restriction of tbe issues to any phase of tbe case. Tbe factual situation disclosed by tbe evidence on tbe second trial does not differ materially from tbe case as it then stood; and tbe views expressed by tbe Court in tbat decision with respect to tbe negligence of tbe defendants and tbe suggested insulation thereof by tbe conduct of McCrimmon become tbe law of tbe case.
Adverting to the instructions to tbe jury challenged upon tbis appeal, we have to say tbat mere intervention, alone, of an independent negligent act will not relieve tbe author of an original negligence from tbe consequences of bis negligent conduct as an efficient cause in producing tbe injury.
“By proximate cause is not meant necessarily tbe last act of cause, or nearest act to tbe injury, but such act, wanting in ordinary care, as actively aided in producing tbe injury as a direct and existing cause.” 38 Am. Jur., p. 703, sec. 55.
Tbe court below was not in error in instructing tbe jury tbat intervening negligence to have tbe effect of “insulating” tbe original negligence, where it is found to exist, must totally supersede tbat negligence in causal effect. Tbe principle as laid down in Sherman and Redfxeld on
“But if any degree, however small, of the causal negligence, or that without which the injury would not have occurred, be attributable to the defendant, then the plaintiff, in the absence of any contributory negligence on his part, would be entitled to recover; because the defendant cannot be excused from liability unless the total causal negligence, or proximate cause, be attributable to another or others. ‘When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, he is liable.’ ” Wood v. Public-Service Corp., 174 N. C., 697, 94 S. E., 459.
But the trial judge did fall into a causal error in instructing the jury that in order to break the sequence of proximate causation or, in other words, to supersede the original negligence as proximate cause, the intervening negligence must be palpable or gross.
This expression was derived from Herman v. R. R., 197 N. C., 718, 150 S. E., 361, and was applied in Hinnant v. R. R., 202 N. C., 489, 493, 163 S. E., 555, but met with definite disapproval in Quinn v. R. R., 213 N. C., 48, 50, 195 S. E., 85.
The test is not to be found merely in the degree of negligence of the intervening agency, but in its character — whether it is of such an extraordinary nature as to be unforeseeable. Restatement of the Law, Torts, sec. 447; Butner v. Spease, 217 N. C., 82, 86, 6 S. E. (2d), 808. A . person is bound to foresee only those consequences that naturally and probably flow from his negligence; but caution must be observed in the application of this principle also, since the failure'to foresee the exact nature of the occurrence caused by his negligence will not excuse him if it could be reasonably foreseen that injury to some person might occur through an event of that character. Dunn v. Bomberger, 213 N. C., 172, 177, 195 S. E., 364; Lancaster v. Greyhound Corporation, 219 N. C., 679, 688, 14 S. E. (2d), 820.
The real test then is that of foreseeability of the intervening act as a reasonable consequence of the original negligence. If upon the application of these principles, the intervening act or conduct is found to be reasonably foreseeable as a consequence of the original negligence, it will not serve the purpose of insulation. See quotation from White v. Realty Co., supra; Wood v. Public-Service Corp., supra.
The test applied in the instruction is not wholly consistent with these rules, and may have diverted the jury from their application. For the
We deem it unnecessary to consider other exceptions.
New trial.