Pettes v. Jones

While it is not easy to determine the exact theory of the majority opinion, written by Mr. Justice BICKLEY, it fairly appears that it is predicated upon one or the other of two views, either of *Page 187 which is untenable if long established governing principles are to be preserved. One view relates to the construction of general and special verdicts; the other has to do with proximate causation in the law of negligence.

The question of causation as presented in this case in reality involves the settlement of a single issue; namely, whether negligence is actionable if it contributes "to any extent" or "in any degree" to cause an injury. It is only in its implications that the prevailing opinion takes the affirmative of this proposition generally. But its whole weight is cast in support of such a proposition in its application to the facts of this case. For of what avail is it to concede that proximate causation must exist to render given negligence actionable; that its contribution merely to some extent, or in a slight degree, will not suffice; if in the same breath it is declared it cannot contribute to any extent without having contributed proximately.

In what thus far has been said I have spoken generally of the law of negligence without differentiating between "negligence" and "contributory negligence." I think the majority agree that there is no substantial difference between them as respects the application to either of controlling principles. A relationship of proximate cause, shown by the evidence, between the negligent act and the injury always has been held absolutely essential to recovery. If contributory negligence be not involved, a defendant's negligence must be established as the proximate cause to warrant a recovery. If involved, it must appear as a proximate cause concurring with that of defendant to produce the injury complained of before operating to bar recovery. So that as respects causal relationship between the act and the injury there is no essential difference.

In Anderson on "An Automobile Accident Suit," § 745, pp. 896, 897, the author states: "The great weight of authority holds that before contributory negligence will operate to bar a recovery it must have been an efficient or a proximate cause of the injury; and whatever language is used with respect to contributory negligence it will be seen, when it is analyzed, that in order for contributory negligence to operate as an efficient bar to the plaintiff's recovery it must have been a proximate cause of his injury."

And on page 898 of the same text, the author says: "Some courts, by reason of a mis-use of language, have stated the law to be that there can be no recovery if the negligence of the plaintiff contributed in the least degree to the accident. But it does not take an extended analysis or examination to reach the conclusion that such statement is unsound, since negligence and contributory negligence are not essentially different."

In Foster v. Beckman (Tex.Civ.App.) 85 S.W.2d 789, 793, in which a writ of error was refused by the Supreme Court of Texas, a very recent case of which I shall have more to say later, because it deals with findings claimed to be in conflict *Page 188 in exactly the same respect here urged, the court said: "Suppose the findings for the appellee had been that the appellant was negligent, and that such negligence contributed to appellee's injuries but was not the proximate cause of same; could it be seriously contended that any court would order a judgment entered for plaintiff upon such findings? Is there, then, one rule for the plaintiff and another for defendant in this character of case? The above quotations demonstrate that there is not, if such a plain proposition needs any demonstration."

In the jurisprudence of our own state we have always recognized the rule, regarded as elementary, that the act relied upon as negligent must appear as the proximate cause of the injury complained of before a plaintiff can recover. In Maestas v. Alameda Cattle Co., 36 N.M. 323, 14 P.2d 733, 735, we quoted approvingly from the early case of Lutz v. Atlantic Pacific R. Co., 6 N.M. 496, 30 P. 912, 16 L.R.A. 819, a definition of proximate cause as that "cause which, in natural and continued sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which that result would not have occurred." And because a relation of proximate cause between the alleged negligent act of the defendant and decedent's death was not shown by the pleading involved in the Lutz Case, our Territorial Supreme Court held a demurrer thereto was properly sustained. Our adherence to the doctrine of proximate cause as an essential to recovery in negligence cases is reaffirmed as lately as the case of Gilbert v. New Mexico Construction Company,39 N.M. 216, 44 P.2d 489.

Nor have we ever recognized any distinction in its application to cases involving contributory negligence. In Thayer v. Denver R.G.R. Co., 21 N.M. 330, 154 P. 691, 695, we said:

"Where an action is predicated upon an omission of duty, in such a case it properly belongs to and is classified in the field of negligence. To such an action contributory negligence on the part of the plaintiff, which continues concurrently with the negligence of the defendant and contributes proximately to the injury, is a valid defense." (Italics mine.)

See, also, Thompson v. Albuquerque Traction Co., 15 N.M. 407,110 P. 552; Spence v. El Paso S.W. Co., 28 N.M. 132,207 P. 579; Mayfield v. Crowdus, 38 N.M. 471, 35 P.2d 291, 294.

In the case last cited, Mayfield v. Crowdus, decided very recently, we said: "For the reason indicated and for the purposes of this case it must be considered that any negligence of plaintiff contributing directly and proximately to cause the injuries complained of will suffice to defeat recovery." (Italics mine.)

I stand now where this court always has stood, unswerving in adherence to the doctrine that proximate causation between the act or omission and the injury is indispensable either to sustain recovery in the ordinary negligence case or to bar *Page 189 it where contributory negligence is interposed as a defense.

The "any degree" theory in the law of contributory negligence is condemned by a learned writer on the subject. In 1 Thompson's Commentaries on the Law of Negligence, § 170, pp. 167-169, the author has this to say: "According to the rule which prevails in Courts of Admiralty especially in case of collision, if both vessels are in fault, the loss is divided between their respective owners, according to their respective measure of negligence; but, according to early statements of doctrine in the English Court of Queen's Bench, still frequently repeated in American courts, but really no longer law, in courts of common law, except in two or three jurisdictions, the plaintiff has no remedy if his negligence, that is, if his want of ordinary care,in any degree contributed to the injury. Some of the cases say that if the negligence of the plaintiff, or the person killed or injured, contributed in any degree, how ever slight, to produce the injury, there can be no recovery. But this doctrine, which visits upon the plaintiff or person injured all the consequences of the defendant's negligence, although the plaintiff's negligence may have been slight and trivial, and that of the defendant gross and wanton, is cruel and wicked, and shocks the ordinary sense of justice of mankind. Such a rule finds no proper place in an enlightened system of jurisprudence."

Nor is it accurate, as Mr. Thompson points out, to say that if a plaintiff by his conduct "contributed" to his injuries, he cannot recover.

"This statement of the principle is incorrect. In many cases where the plaintiff's conduct was to some extent contributory to his injury he has been allowed to recover. In fact, it would be difficult to conceive of any case in which the conduct of the party injured might not, in some sense, be said to have `contributed' to his injuries." Id. § 218, pp. 212, 213.

"The plaintiff's fault does not affect his right of action unless it proximately contributed to his injury. It must be a proximate cause in the same sense in which the defendant's negligence must have been a proximate cause in order to give any right of action." 1 Sherman Redfield on the Law of Negligence (6th Ed.) § 94.

In this connection we refer also to the illuminating opinion of the Supreme Court of South Carolina in the case of Jeffords v. Florence County, reported in 165 S.C. 15, 162 S.E. 574, 81 A.L.R. 313.

Notwithstanding these statements from texts of the highest standing, as pointed out by Mr. Thompson, decisions are to be found declaring that if plaintiff's negligence contributed "in any degree," or "in the least degree" to cause the injury, he cannot recover. See Goldschmidt v. Schumann, 304 Pa. 172,155 A. 297; Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 147 A. 346, 66 A.L.R. 1109. Whereas other decisions representing the great weight of authority hold it to be an erroneous statement of the law to instruct or assert that a plaintiff is *Page 190 barred of recovery if his own negligence has contributed "in any degree," or "in the least degree," to the injury.

"It is not sufficient to bar an action that contributory negligence may contribute `in the least degree' or `in any degree' or that it merely `contributes' to the accident or happening. It must enter into and form a part of the efficient cause thereof before it will bar an action if one otherwise could be maintained." (Citations omitted.) Carr v. City of St. Joseph (Mo.Sup.) 225 S.W. 922, 923.

See, also, Gaster v. Hinkley, 85 Cal. App. 55, 258 P. 988; Smirnoff v. McNerney, 112 Conn. 421, 152 A. 399; Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025; Liske v. Walton, 198 N.C. 741, 153 S.E. 318; Sharp v. Russell, 37 Ohio App. 306, 174 N.E. 617; Chapman v. Blackmore, 39 Ohio App. 425,177 N.E. 772; Price v. Gabel, 162 Wash. 275, 298 P. 444.

It is, no doubt, this wealth of eminent authority rejecting as unsound the "any extent" or "slightest degree" doctrine of causation in the law of negligence, whether primary or contributory, to which the prevailing opinion adverts in conceding that "some courts have expressed opinions at variance with those we here express." If so, I do not deem convincing the reason advanced for eliminating "as valueless decisions from jurisdictions where * * * the `last clear chance' doctrine is available to plaintiff without being pleaded in the complaint." Any implication that a lesser degree of causation than that of proximateness is effectual in states such as New Mexico which require last clear chance to be specially pleaded in the complaint than prevails in states permitting the issue to arise under merely general allegations of negligence and a denial thereof, rests on a false assumption. This court, as shown from the earliest cases dealing with the subject, has supported the rule of proximate causation. And as may be ascertained by a mere reference to them, the following decisions from other states listed in 45 C.J. 1102 as in line with New Mexico in the requirement of specially pleading last clear chance in the complaint, cling with steadfastness to the requirement of proximate causation, to wit: Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025; Chapman v. Blackmore, 39 Ohio App. 425, 177 N.E. 772; Sharp v. Russell, 37 Ohio App. 306,174 N.E. 617; Rice v. City of Portland, 141 Or. 205, 7 P.2d 989,17 P.2d 562; Foster v. Beckman (Tex.Civ.App.) 85 S.W.2d 789; Southland-Greyhound Lines, Inc., v. Richardson, 126 Tex. 118,86 S.W.2d 731.

No doubt, as stated by Mr. Thompson, much of the confusion encountered is due to a failure to mark the distinction between negligence of the plaintiff and its causal connection with the result.

"The foregoing cases conduct the mind to a distinction, a failure to regard which has constantly confused the minds of counsel, judges and juries. It is, that the negligence *Page 191 or fault of the plaintiff or person injured is one thing, and the causalconnection between that negligence or fault and the catastrophe is another." 1 Thompson on Negligence, § 229.

In so far as the phase of the doctrine here involved is concerned, we think the formula given in Restatement of the Law, under the subject, "Torts," is sound and represents as satisfactory a statement of the true rule as is to be found. In section 463 of this text contributory negligence is defined in the following language, to wit: "Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, co-operating with the negligence of the defendant in bringing about the plaintiff's harm."

And at section 465 of the text just cited, the principle governing causal connection between harm and negligence is succinctly stated, as follows: "The plaintiff's negligent exposure of himself to danger or his failure to exercise reasonable care for his own protection is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility because of the manner in which his conduct contributed to his harm." (Italics mine.)

The rules determining whether plaintiff's conduct is a substantial factor in bringing about his harm are set out in sections 432 and 433 of the same work. Of course, the jury which heard the case at bar was not instructed in the language of this formula. It was properly instructed, however, upon the law of contributory negligence and had "proximate cause" correctly defined for its guidance as noted in the majority opinion. No exceptions were saved to such instructions.

The prevailing opinion challenges the application of these authorities to the present case in a dual fashion. First, it says the question of "proximateness" was settled by the Legislature in the enactment of the statute requiring taillights, under the so-called "probability" test in its relation to causation. Second, that absence of the taillights could not have contributed at all to cause the accident without having contributed proximately. Thus is proximateness brought to the aid of the special finding; under the first view, as a judicially declared though unexpressed legislative intention; under the second view, by sheer process of judicial interpretation. Its presence is laid upon the shoulders of the Legislature under one view. The court must accept responsibility for it under the other. The jury whose peculiar province it is to settle the question is ignored under both views.

The first view, in my opinion, rests upon a misuse of the probability test in determining legal causation. The second overrides controlling principles applicable in determining whether general and special verdicts are in irreconcilable conflict. I shall deal with these questions in the order of their statement. *Page 192

If I correctly understand the prevailing opinion, its reasoning runs thus: Where no fixed standard of conduct is prescribed, the test of negligence is the conduct of an ordinarily prudent person under the circumstances. How the average man would have reacted to the same circumstances is determinable by what he should have foreseen as the probable consequences of his conduct. Under proper instructions, with this test in mind, the issue of negligence will be submitted to the jury for its determination.

But, says the prevailing opinion, "foreseeability" or "probability" is not alone a test of negligence. Under what it pleases to term the prevailing rule, it is a test also of proximate causation. Therefore, when the jury convicts the defendant of negligence, thereby resolving the "probability" test in plaintiff's favor on that issue, by the same token it has resolved the question of "probability" in his favor on the issue of proximate causation. Hence, where the act or omission charged is the violation of a statutory duty, amounting to negligence per se, and the jury finds that injury of a kind sought to be prevented did happen, and was contributed to, however slightly, by the claimed violation, the issue of negligence being settled by the Legislature, the issue of proximacy of causation is likewise decisively resolved and will be so declared as a matter of law. It is this specious line of reasoning alone which, attaching "proximacy" to the degree of contribution otherwise intended by the special verdict, lifts it to a position of irreconcilable conflict with the general verdict. The conclusion announced is without support in reason and logic.

The fallacy of the argument consists in the second application of the test of "probability" upon the issue of proximate cause. As a test of negligence, it has exhausted its decisive character and may not properly be re-employed with like force in settling the issue of proximate causation. Eminent writers upon the subject under discussion present this position with such forceful logic that I shall be content with a few quotations from them.

Judge Jeremiah Smith, in one of the most analytical and best reasoned articles yet written upon the subject, "Legal Cause in Actions of Tort," 25 Harvard Law Review 241, et seq., says:

"In every action for negligence, upon the same state of facts two distinct issues may arise: one, `the preliminary issue of negligence vel non'; the other, if negligence is found to exist, the issue as to the causative effect of that negligence. * *

"A probability that some harm may happen, not necessarily the specific harm which did actually result, is legally essential to raise a duty of care and thus establish the existence of negligence. But, if negligence is thus made out, such probability is not a legal requisite to establish the existence of causal relation between defendant's negligent conduct and plaintiff's damage.

"It is not generally requisite to show for any purpose the probability of the specific damage which actually resulted. It is not necessary to show a probability of some damage except when the charge is one of negligence; and then it is necessary onlyfor the purpose of establishing negligence. It is not *Page 193 an essential legal element in the succeeding steps, (1) of establishing the occurrence of damage, and (2) of establishing the existence of causal relation between defendant's negligence and plaintiff's damage. Such probability is no more essential to the existence of causal relation in negligent torts than in intentional torts. As to both intentional torts and negligent torts, in making out the existence of causal relation, probability is a circumstance which may be weighed by the jury, in connection with the testimony, in passing upon the question of fact — whether the causal relation existed. And probability or improbability might sometimes have practically a decisive effect. But it would not be a legal test; would not, as a matter of law, be decisive. * * *

"Because probability is to a certain extent essential to establish the existence of negligence, it seems supposed by some persons that it must also of necessity be essential to establishing the existence of causal relation between defendant's negligence and plaintiff's damage. But the tortious nature of defendant's conduct and the causative effect of that conduct areentirely distinct matters; and what is a requisite element as to the first subject is not necessarily so as to the second." (Italics mine.)

Mr. Albert Levitt, in his article on "Cause, Legal Cause and Proximate Cause," 21 Mich.Law Rev., at pages 42 and 43, says: "A negligent act is one which is likely to result in some sort of an injury according to the time, place and circumstances where the act is performed. Negligence is forbidden by common law; but nothing is negligent unless it was foreseeable, at the time of acting, that the act was of a harmful type. If harmful, then it was forbidden; if not harmful, then it was not forbidden. Foreseeableness determines prohibition; it does not determine causation; nor does it determine proximate causation."

In the much-quoted case of Christianson v. Chicago, St. P., M. O. Ry. Co., 67 Minn. 94, 69 N.W. 640, 641, Mr. Justice Mitchell gives a terse statement of the true rule. He says: "What a man may reasonably anticipate is important, and may be decisive, in determining whether an act is negligent, but is not at alldecisive in determining whether that act is the proximate cause of the injury which ensues." (Italics mine.)

Perhaps no clearer expose of the false logic in employing "probability" as a decisive test upon the question of proximate causation is to be found anywhere than in treatments of the subject by Prof. Leon Green who is quoted from in the prevailing opinion. In his article "Are Negligence and `Proximate' Cause Determinable by the Same Test?" appearing in volume 1 of Texas Law Review, page 243 et seq., Prof. Green becomes the severest critic of the premise upon which rests *Page 194 almost the entire argument of the prevailing opinion on the question of proximate causation. Among other things, he says, at page 246:

"It is submitted that the confusion to be found in the opinions of our own as well as those of other courts has arisen from a failure to recognize affirmatively that in negligence cases there are at least two distinct problems. First, the negligence itself, the wrongful conduct of the defendant, must be made to appear. Ordinarily this is done by use of the universal common law test of negligence, i.e., should the defendant as a probable result of his conduct have foreseen harm to the plaintiff. If so, and the defendant failed to use reasonable care to prevent the hurt, the wrong of defendant has been established. This is the legitimate use of the `probable consequence' rule. By this use of the test plaintiff makes out the first element in his case. After this is established there still remains the second problem, that is,what harm has plaintiff suffered from defendant's wrong. To attempt to make a second use of the `probable consequence' rule in order to determine this issue is to pervert its use. It was not designed for double duty. It has only one proper use."

For a further discussion of this subject by Prof. Green, see section 5 of chapter 4 of his work, "Rationale of Proximate Cause," page 122 et seq.

The sole reason put forward in the prevailing opinion for rejecting or disregarding these destructive criticisms against use of the "probability" test in determining proximate causation is that they were provoked by objections to the limit it placed on plaintiff's recovery; that it is a good test for the affirmative of the proposition, i.e., that a defendant is responsible for the foreseeable consequences of his wrong, and should be retained for such cases, even though it be discarded on the negative side, i.e., non-liability for unforeseeable consequences.

This argument overlooks the fact that by reason of its inherent unsoundness the writers quoted discard "probability" in entirety as a decisive test, notwithstanding it would in the majority of cases function satisfactorily on the affirmative of the proposition. Prof. Green says: "If the test as usually stated is in fact only half a test; if its range is too short to cover a large class of cases where justice would demand a recovery, then it should be discarded and some test adopted which will not fail in those cases most difficult of determination." 1 Tex.Law Review, 246.

The reason underlying rejection of the "probability" test in causation is its unreliability. After the event, it sometimes was seen that unforeseeable harm resulted in an unbroken chain of causation from a given act, so that all question of proximacy was removed. And yet, applying the test, recovery was denied. Likewise, however probable a given result might have seemed before the event, it was not always the result which actually did *Page 195 happen. Quoting the language of Judge Jeremiah Smith in the article above mentioned: "Where there is a conflict of direct testimony, jurors, as sensible men, may allow some weight to probabilities in coming to a conclusion as to whether a certain fact really happened. But there is no rule requiring them, asmatter of law, to find that the result which was the more probable was the result which actually occurred. They are at liberty to find, and may sometimes be fully justified in finding, that an improbable story is true, or that a probable story is false." 25 Harv. Law Rev. 244.

It thus appears that as a decisive factor (the effect given it here by the majority) the probability test is rejected in its entirety. And why not? If the test be bad as imposing an unwarranted limitation on plaintiff's recovery in those cases in which the "improbable" does happen, is it not equally bad incharging the defendant in those cases where the "probable" does not happen? The question furnishes its own answer. The critics of the test do not say that "probability" may not play an important part in the jury's consideration of proximate causation. As Judge Jeremiah Smith points out, with the jury it may "have practically a decisive effect." 25 Harv. Law Rev. 243. It is its province to say whether it shall have such effect.

"Before the question of causation can be submitted to the jury, there is a preliminary question to be decided by the judge; namely whether upon the evidence twelve honest men can reasonably find the existence of the causal relation. It is for the judge to say whether the jury can reasonably so find; and then, if he decides in the affirmative, it will be for the jury to say whether they do so find. The judge has to say whether on the evidence causal relation may be reasonably inferred; the jurors have to say whether from the evidence, if submitted to them, the causal relation is inferred by them." Judge Jeremiah Smith in 25 Harvard Law Review, 306.

This court, in Gilbert v. New Mexico Construction Co., 39 N.M. 216,44 P.2d 489, seemingly relied upon in the prevailing opinion as lending approval to the probability test in determining proximate causation, goes no further than to speak of it as a proper matter for inquiry by the jury.

The majority opinion willingly accepts it as the prevailing rule to treat the existence of negligence and causal relation as the same problem, to be determined by the same formula. The more important inquiry is whether it is the true rule. I think its unsoundness has been demonstrated. And failure of American Law Institute in its Restatement of the Law of Torts, §§ 433 and 435, to incorporate the "probability" test casts doubt on it as the prevailing rule. In so far as it gives effect to the natural and probable consequence formula at all in determining whether the actor's conduct is a substantial factor in producing the harm, it *Page 196 is from the standpoint of what Prof. Green was pleased to term "hindsight" rather than "foresight." 1 Tex.Law Rev. 248.

Before leaving discussion of "probability" as a test of proximate causation, one other matter requires consideration. The prevailing opinion says: "The failure of the minority to duly appreciate that the determination of `proximateness' as a characterization of `cause' requires the determination of the quality of conduct involved is we believe the reason for their inability to agree with us. Proximateness is qualitative and not quantitative."

This may be accepted as a partially accurate statement of one reason for disagreement with the prevailing opinion. I do not think the issue of proximate causation or "proximateness" is qualitative at all. On the contrary, I submit that the determination of legal causation presents a quantitative rather than a qualitative issue. The correctness of this conclusion is affirmed by the very nature of the inquiry putting the issue: What is the extent of causal relation between the act and the harm? In other words, how much did the act contribute to bring about the harm? Was its contribution "appreciable," "substantial"? Obviously, such an inquiry is quantitative. It is declared so by Prof. Leon Green. In his Rationale of Proximate Cause, at page 122, he says: "Determining whether a rule covers a loss is a wholly different process from that of seeking cause and effect, and one which is inescapable in any case, under whatever guise it may be considered. One is qualitative, the other quantitative. Neither can be translated into terms of the other, however persistently it may be attempted."

Again at pages 140 and 141 of the same work, Prof. Green says: "The `average man' and the `substantial factor' tests allow the widest range — limited only by the court's power to bound their extremes — but present ideas sufficiently concrete to enable the jury to grasp their meaning and to make use of them in determining the respective problems of culpability and causation. Neither has any place other than in its own formula. They are not convertible terms. The `average man' does well enough as a means for determining the quality of defendant's conduct. The `substantial factor' will do equally as well for determining theextent of such conduct. One is a qualitative measure; the other a quantitative measure; just as the fact of wrongdoing is one for qualitative analysis, while the fact of causation is one for quantitative analysis. The two problems are on different planes; they have resemblances, but they are not identical."

In order that this discussion may not seem purely academic, the exact point at which the majority are led into error by this misapprehension will be pointed out. The prevailing opinion says: "It being found by the jury that the violation of the statute did contribute to cause the collision, and the court having already determined *Page 197 that the statute was designed to prevent just that sort of collision, then using the same process the court was circumstanced to find that the quality of proximateness attached to the cause. * * * In other words, the court, having found that if the plaintiff violated the statute, he was under the facts guilty of negligence as a matter of law, was by the same token able to say that the quality of proximateness attached to the cause." (Italics mine.)

If the majority had correctly conceived that the true inquiry at this point is quantitative rather than qualitative, an ascertainment of the degree or extent of causation rather than an inquiry touching quality of conduct, the use of a measuring rod to determine extent rather than a microscope to detect kind, I believe they would view it as a question of fact for the jury rather than one to be resolved by the court as a matter of law.

In the use made of "probability" as a decisive test on the question of proximate causation, the prevailing opinion follows to an extent easily discernible the doctrine of Johnson v. Boston Maine R.R., 83 N.H. 350, 143 A. 516, 61 A.L.R. 1178. It was there held in effect that a statute prohibiting any person, not licensed, from operating a motor vehicle upon the state highways, rendered unlicensed drivers entitled to no other right than exemption from reckless, wanton, and willful injury. Such a doctrine carries no humanitarian appeal. It is classified as a minority doctrine which has been severely criticized both by text-writers and the courts of other states. It is sometimes mistakenly referred to as the "Massachusetts doctrine." For criticisms of the doctrine, see 27 Mich.Law Rev. 966; 24 Ill.Law Rev. 481; Wilson v. Rogers, 140 Kan. 647, 38 P.2d 124; Gilman v. Central Vermont R. Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102, and case note at page 1108.

The objection to the doctrine is both its harshness and that it declares an unexpressed legislative intention. The prevailing opinion does not go so far as the New Hampshire court in saying what the Legislature has not expressly said, that the violator of the statute is denied civil relief for a relevant injury except where wantonly or willfully inflicted. That is to give full effect to the statute as declaring causation. But it does say and hold that if causation in fact "to any extent" be found, any want of required proximity may be deduced from the statute itself, as a matter of law. This proposition I unhesitatingly and vigorously challenge.

Turning now to the treatment in the prevailing opinion of the general and special verdicts. In the beginning, I stated the majority opinion rested upon one of two views, one having to do with proximate causation, the other relating to the interpretation of the general and special verdicts. An application to the case before us of principles controlling the latter question necessarily involves an inquiry whether the jury's special finding that plaintiff's negligence contributed to some extent *Page 198 must be interpreted as a finding that it contributed proximately to cause the injury.

The first pertinent inquiry presenting itself under this phase of the case is: Does the special finding disclose irreconcilable conflict with the general verdict? Unless it does, the latter controls. Leyba v. Albuquerque Cerillos Coal Co., 25 N.M. 308,182 P. 860; Thayer v. Denver R.G.R. Co., 25 N.M. 559,185 P. 542; Rheinboldt v. Fuston, 34 N.M. 146, 278 P. 361. Otherwise, the former is decisive and judgment should be entered pursuant thereto. "Trial Court Rules", § 70-103. Of course, no conflict should be declared until effort has been made to reconcile seeming inconsistency. The special finding must exclude every reasonable inference authorizing the general verdict. 64 C.J. 1177, § 965, "Trial." National Metal Edge Box Co. v. The Hub,89 W. Va. 101, 108 S.E. 601; City of Wabash v. Bruso, 186 Ind. 637,117 N.E. 867. Moreover, no presumptions will be indulged in favor of answers to special findings as against the general verdict. Iowa City State Bank v. Biggadike, 131 Ark. 514, 199 S.W. 539; Kingan Co. v. Albin, 70 Ind. App. 493, 123 N.E. 711.

All that is required to demonstrate the fallacy of the majority view in this case is to apply to it the very principles touching construction of general verdict and special findings approved in the prevailing opinion. The majority correctly state that the special finding controls the general verdict if in irreconcilable conflict with it; but that before declaring a conflict, due effort should be made to reconcile apparent inconsistency; and (quoting the majority opinion) they continue: "In order to prevail, the special finding should clearly exclude every reasonable conclusion that would authorize the general verdict."

An affirmative answer by the jury to the special inquiry whether plaintiff's negligence contributed to any extent to cause the collision certainly does not exclude the reasonable conclusion that the extent of contribution intended was simply as a "remote cause"; as "merely an antecedent occasion, condition or attendant circumstance of the injury." 45 C.J. 975. This must be so in view of the general verdict in plaintiff's favor under instructions defining with care the meaning of proximate cause and charging the jury that no verdict in plaintiff's favor was warranted if his negligence be found proximately to have contributed to cause the injury, and as an element without which the injury would not have occurred.

The instructions, in charging the jury that plaintiff's negligence must have contributed proximately to cause the injury before operating to defeat recovery, and in defining proximate cause, in effect told the jury that any causal connection between plaintiff's omission and the injury which did not attain the degree of proximacy was ineffective to defeat recovery. Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025. The general verdict in plaintiff's favor said, in legal effect, as *Page 199 unmistakably as if expressly declared: "We find defendant's negligence the proximate cause of the injury and plaintiff's negligence, although causal, not proximately so, as that term has been defined to us." Unquestionably such is the effect of the general verdict. Such an answer as that here given to the special interrogatory submitted conceivably rests within a general verdict in plaintiff's favor in every negligence action to which contributory negligence is pleaded as a defense. Fulton v. Chouteau County Farmers' Co., supra.

Here, before coming in conflict with the general verdict, the special finding must have supplied for it the word "proximately" as the extent of contribution intended. How is it to get this word except by implication or presumption? There is no other means of supplying it. The jury did not say it. And in saying it for the jury, the court performs a jury function. Defendant's counsel was content to submit his question without embracing this indispensable element. The majority, although finding no fault with the well-recognized rule of interpretation that no presumptions will be indulged in favor of answers to special findings as against the general verdict, in reaching the conclusion announced necessarily do the very thing which the rule forbids. This is so because the word "proximately" is either added to the special finding as a factual implication or presumption, or it is held to belong there as a matter of law. However viewed, the word can only get into the special finding by presumption and the rule mentioned denies it access in any such manner.

Other authorities than those cited, sustaining the correctness of rules announced by the majority for interpreting seemingly conflicting special and general verdicts, which rules they approve but do not follow, are: Koskela v. Albion Lumber Co.,25 Cal. App. 12, 142 P. 851, 857; Conwell v. Tri-City Ry. Co.,135 Iowa, 190, 112 N.W. 546; Haddon School Tp. of Sullivan County v. Willis (Ind.Sup.) 199 N.E. 251; Samson v. Zimmerman, 73 Kan. 654,85 P. 757; Lesher v. Carbon Coal Co., 127 Kan. 34, 272 P. 155; Benedict v. Carter State Bank, 54 S.D. 14, 222 N.W. 500, 505.

In Koskela v. Albion Lumber Co., supra, is found a very clear statement of the principle for which I contend. The court said:

"There was a general verdict for plaintiff and against defendants. The rule is that the general verdict imports a finding in favor of plaintiff on all the averments of the complaint material to his recovery. Merritt v. Wilcox, 52 Cal. 238,242.

"`The presumption is that the general verdict covers findings in plaintiff's favor upon all the facts necessary to be proved under the issues not covered by the findings.' Clementson on Special Verdicts, p. 135.

"And all presumptions are in favor of the general verdict for the plaintiff, and it must control if the special verdict is not absolutely irreconcilable therewith. * * * Obviously, as the general verdict is an express *Page 200 finding for plaintiff on all material issues, it should not be overthrown unless the special findings are utterly at war with it."

In Benedict v. Carter State Bank, supra, the court said: "Here likewise we are unable to see any inconsistency between the fact specially found by the affirmative answer to this interrogatory and the general verdict, particularly in the light of the clear rule of law that no presumptions will be indulged in favor of inconsistency, and that, as stated by the California court: `* * * We do not think the court should strain the language of afinding to make out a case of conflict. The finding should be reconciled if it can be reasonably done, and be so construed ut res magis valeat quam pereat.' [Italics mine.] Alhambra, etc., Co. v. Richardson (1887) 72 Cal. 598, 14 P. 379."

In support of the contention that contributory negligence need not be specially found to have contributed proximately to cause the injury to overthrow a general verdict in plaintiff's favor, if it be found to have contributed at all, the majority rely upon Lathrop v. Miller, 132 Kan. 425, 295 P. 722; Behymer v. Mosher Mfg. Co. (Tex.Civ.App.) 192 S.W. 1148; Hines v. Foreman (Tex.Com.App.) 243 S.W. 479; Bullard v. Ross, 205 N.C. 495,171 S.E. 789 and Crane v. Carswell, 203 N.C. 555, 166 S.E. 746. The North Carolina decisions may be dismissed with the statement that the point is decided without even discussing it. In addition to what is later said about the Texas cases, it may here be noted that the doubt expressed in the quotation in the prevailing opinion from the Behymer Case, whether negligence could contribute at all without contributing proximately to an injury, on its face is pure dictum, the court saying that, regardless of that question, the case was ruled by another point.

In Lathrop v. Miller, supra, the Supreme Court of Kansas with but slight discussion holds that a special finding that plaintiff's own negligence "contributed to the injury complained of" overcomes a general verdict in her favor. Mr. Thompson in his Commentaries on the Law of Negligence, Vol. 1, § 218, says of such a declaration: "This statement of the principle is incorrect. In many cases where the plaintiff's conduct was to some extent contributory to his injury he has been allowed to recover."

In the Kansas case the court was able to find conflict between the special finding and the general verdict after, but only after, interpolating the word "proximately" into the special finding, just as the majority have supplied it here. The conclusion that the court was warranted in supplying this word seems thoroughly out of harmony with other decisions of the same court holding that all facts in issue which are not specially found shall be presumed to have been determined in accordance with the general verdict. Samson v. Zimmerman, supra, and Lesher v. Carbon Coal Co., supra.

Whatever support the majority may consider is afforded by the Texas cases, Behymer *Page 201 v. Mosher Mfg. Co., supra, and Hines v. Foreman, supra, is withdrawn, I think, by the opinion in the very recent case of Foster v. Beckman (Tex.Civ.App.) 85 S.W.2d 789,791, heretofore cited, in which the Supreme Court of Texas denied a writ of error. In this case the defendant's negligence was in driving his motortruck on the wrong side of the road and at an excessive speed. The plaintiff's contributory negligence was in driving his truck with only one headlight burning. This constituted violation of a statutory duty and was negligence per se. The points raised and determined are identical with those presented in the case at bar. Hence, I quote from the opinion at some length:

"The jury in answer to special issues found that appellant was driving his truck on the wrong side of the public road at forty-five miles per hour. The testimony of appellee was that in passing, appellant's truck `side-swiped' his own striking appellee's arm which was resting on the side of the truck cab and injured it so severely he lost it by amputation. One of the defensive theories pleaded and proven was that appellee at the time of the accident was driving his truck at about dark with only one headlight burning. The court gave appellant's special requested charge, which was as follows:

"`Gentlemen of the Jury:

"`You will answer the following questions "yes" or "no" from a preponderance of the evidence.

"`(a) At and immediately prior to the time of the collision in question did the plaintiff, Joe Beckman, have only one headlight burning on the truck he was driving?

"`(b) If you answer the preceding question "yes," then answer the following question:

"`Was the act of plaintiff, Joe Beckman, in driving his truck at the time and place in question with only one headlight burning, negligence as that term is defined in the Court's main charge?

"`(c) If you answer the preceding question "yes," then answer the following question:

"`Was such negligence on the part of Joe Beckman a proximate cause of his injuries?

"`(d) Did the act of Joe Beckman in driving his car with only one headlight burning, at and immediately prior to the time of the collision, if you have answered he was so doing, contribute to his injuries?'

"The jury answered subdivisions (a) and (b) `yes,' (c) `no,' and (d) `yes.' The appellant contends here that such answers entitled him to a judgment. We quote from his brief:

"`Violation of a positive statutory rule is, of itself, contributory negligence.'

"`* * * it is not necessary to defeat recovery on the ground of contributory negligence to show that the plaintiff's negligence was a proximate cause of his injury. This may sound like an unusual statement, but we have ample authority to support it.'

"To assert that proximate cause is not an element of contributory negligence is indeed *Page 202 an unusual statement, but not quite so remarkable as the fact that appellant cites expressions from authorities which on their face support his theory. We do not think there is any doubt that the Supreme Court has pointedly and repeatedly held contrary to appellant's contention, and that such holdings comport with sound reason and the most elementary principles of justice and right. * * *

"Nor do we think that said findings were conflicting, as contended by appellant, when given their proper legal effect. True, the jury found that appellee's negligence `contributed to his injury.' This charge was cast into language selected byappellant. He requested it. He deliberately chose to ignore theissue of proximate cause, sincerely believing then, no doubt, ashis counsel yet do, that such was not a necessary element to besubmitted. The language of Judge Short in Koons v. Rook (Tex.Com.App.) 295 S.W. 592, at page 597, completely answers this contention. We quote: `However, even though the conduct of the plaintiffs amounted to negligence and contributed to the injuries received by them, yet, unless this conduct was a proximate cause of the injuries inflicted upon the plaintiffs by the defendant, it would not defeat a recovery.'" (Italics mine.)

The opinion in this case interprets the opinion of the Texas Commission of Appeals adopted by the Supreme Court of that state in Hines v. Foreman, a case strongly relied upon by the majority. If the Texas Court of Civil Appeals had misinterpreted the opinion in the Hines Case, since the interpretation of it was decisive, the Supreme Court would have granted a writ of error. Hence, the opinion in Foster v. Beckman, as approved by the Supreme Court through its denial of application for writ of error, is the latest intimation of views by that court on the subject and, in my opinion, affords a complete answer to the contentions sustained by the majority in the case at bar.

This case, the nearest in point found in the books, dealing with the precise point, presented in the exact way it here arises (upon asserted conflict between the general verdict and a special finding), decides the question in accordance with the contention here made. Its reasoning is unanswerable. It is dismissed by the prevailing opinion with a statement that its facts are different. There is this difference. In Foster v. Beckman the contributory negligence relied on was violation of a statute requiring headlights. In the case at bar, it is violation of a statute requiring taillights. Truly, this circumstance can make no difference in the application of controlling principles.

Other "taillight" cases, supporting the views here expressed, although arising where the issues were presented under a general charge, are Tendoy v. West, 51 Idaho, 679, 9 P.2d 1026; Landis v. Wick (Or.) 57 P.2d 759, 761; Gleason v. Lowe, 232 Mich. 300,205 N.W. 199; Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814, 816; Woodley Collins v. Schuster's *Page 203 Wholesale Grocery Co., Inc.,12 La. App. 467, 124 So. 559, affirmed Woodley Collins v. Schusters' Wholesale Produce Co., 170 La. 527, 128 So. 469. These authorities emphasize that the question whether plaintiff's negligence contributed proximately to cause the injury is essentially a jury question.

The error into which the majority have fallen may be rendered obvious by reversing the position of the parties now before us in a supposed case growing out of this very accident. Let us suppose the present defendant sues plaintiff for injuries suffered when he, defendant, propelled his car into that of the present plaintiff. The negligence charged is absence of taillights. The plaintiff (now a defendant) does not interpose a plea of contributory negligence, simply denying, contrary to the proof, that his car was without taillights. The trial court, over his specific objection that the instruction should charge that his negligence must be found to have been the proximate cause of the collision, instructs: "Gentlemen of the jury: You are instructed that if you believe from the evidence that the absence of tail lights on defendant's car, if you find such absence, contributedto any extent to cause the collision, you will return a verdict in favor of the plaintiff."

The plaintiff recovers and defendant appealing to this court assigns a single error, to wit, the trial court's ruling on his objection to the supposed instruction, quoted above. This court, now holding through the majority that the identical language italicized in the supposed instruction appearing in the special finding before us is operative to defeat recovery as the parties are now aligned, of necessity would be compelled to hold it sufficient to sustain recovery when the positions are reversed as in the supposed case.

"Is there, then, one rule for the plaintiff and another for defendant in this character of case? The above quotations demonstrate that there is not, if such a plain proposition needs any demonstration." Foster v. Beckman, supra.

The judgment of the lower court would have to be affirmed. This is true, whichever way we view the proposition. For, if negligence contributing to any extent to cause an injury is efficacious, the supposed instruction is correct. If the degree of causation required to render it so is "proximate," any error in the instruction is harmless under the facts here shown, because the majority are holding this same negligence cannot have contributed at all to cause the injury, without having contributed proximately to such end.

Let us pursue this thought a step further. The jury answered affirmatively the inquiry whether absence of the taillights contributed "to any extent" to cause the injury. Suppose the added inquiry "to what extent?" had been put and the jury's answer had been "as a remote cause" (Fulton v. Chouteau County Farmers' Co., supra); as "merely a contemporaneous condition" (Landis v. Wick, supra); or "as merely an antecedent occasion, condition or attendant circumstance of the injury" (45 C.J. 975). Would the majority still affirm the right to disregard the general verdict *Page 204 finding defendant's negligence the proximate cause? Or would they, in the face of such irrefutable proof of what the jury meant by the special verdict, disregard it as immaterial and heed the general verdict? I can only believe they would do the latter. In legal effect, as the matter stands, the jury no less certainly has answered the special interrogatory in the manner supposed.

The majority will concede that a rear-end collision, such as that here involved, could have occurred under such circumstances as to render immaterial the special finding made, even in the face of the views entertained by them. Suppose, for instance, the collision occurred underneath a powerful arc light at a street intersection on a well-lighted city street. The plaintiff's car was without taillights, to be sure. But that would afford no excuse for defendant running into him, for he could see him notwithstanding absence of the taillights. Under such a state of facts, the majority would unquestionably interpret the special finding to mean no more than that absence of the taillight contributed as a remote cause, "merely as a contemporaneous condition," Landis v. Wick, supra, not as a proximate cause, cf. Larsen v. Webb, 332 Mo. 370, 58 S.W.2d 967, 90 A.L.R. 67.

For aught we know, a case analogous to that supposed may have been before the jury. The evidence is not before us. We review the case on the record proper. The evidence may disclose a night when the moon shone so brightly as to have enabled defendant to see plaintiff's car ahead of him much in excess of the distance of visibility required of the statutory taillight. Again, the evidence may carry an admission by defendant that he observed plaintiff's car while 500 feet to the rear of it, or at such a distance short of 500 feet as to render it obvious that absence of the taillights was not a proximate cause of the collision. We are ignorant of what the evidence discloses because, as stated, it is not before us.

Even if defendant had seen fit to bring up the evidence, it could not aid him in this particular. It may not be looked to for determining inconsistency between the general verdict and a special finding. 64 C.J. 1182. Although of no aid to defendant, the plaintiff is assisted by what it may show. The court can and should "consider in aid of the general verdict, all the material facts which were provable under the issues, and will presume they were proved." Id. 1182. If such facts as those supposed were before the jury (and they are within the issues), the majority would be compelled to withdraw the presumption indulged in favor of the special finding.

The case of Padilla v. Atchison, T. S.F. Ry. Co., 16 N.M. 576, 120 P. 724, is reviewed in the prevailing opinion in its relation to this case. It holds the burden of proof is on the defendant to establish contributory negligence on plaintiff's part. Operative contributory negligence means more than mere negligence. The term *Page 205 often is used merely to indicate that it is negligence of a plaintiff that is meant. Such was its obvious use in the sentence quoted from the Padilla Case in the prevailing opinion. "Proof of negligence in the air," as said in Martin v. Herzog, supra, will not do. So that, the Padilla Case, as heretofore understood by the bench and bar of this state, holds not alone that the defendant has the burden of proving negligence on plaintiff's part, but that such negligence contributed to the injury as a proximate cause thereof.

The reasoning employed by the majority to explain the Padilla Case as effectually overrules it in its relation to cases involving statutory violations by a plaintiff as if the court had expressly so declared. For of what avail to tell a plaintiff his adversary has the burden of proving him contributorily negligent, if he must also be told that because the injury to him is of a kind the statute violated was designed to prevent, a presumption of proximateness between the violation and such a result arises under the statute as a matter of law, and that he, the plaintiff, must proceed to show the violation did not so contribute. The opinion says: "While the reasons for the rule that there is a presumption that a plaintiff has been in the exercise of due care are forceful, there is no presumption that his proven negligence eventuating into a result consistent therewith did not proximately contribute to the result. Considerations of common sense, logic, convenience and precedent are to the contrary and strongly support the view that the negligence and a consistent result being shown, the presumption is that the result was proximate."

Obviously, this puts the burden on the plaintiff to establish that his negligence was not a proximately concurring cause. For, how can defendant have the burden if he is to prevail on the mere absence of negative presumptions? It may be admitted there is no presumption that proven negligence of the kind mentioned did not proximately contribute to the result. This does not aid defendant in sustaining his burden, for certainly there is none that it did so contribute.

Some of the remarks in Martin v. Herzog, supra, are explained by the Supreme Court of Oregon in Landis v. Wick, supra, as due to the fact that in New York, contrary to the rule in Oregon and as well in New Mexico, the burden is on plaintiff to establish his freedom from contributory negligence. The Oregon court also points out in the Landis Case that in support of the statement from 9 Blashfield, Cyclopedia of Automobile Law (Permanent Ed.) § 6130, quoted in the prevailing opinion, only two cases are cited, one of which is Martin v. Herzog. All that Judge Cardozo holds in this case is that proximately causal connection between a collision and lack of lights may be inferred by a jury where nothing more appears in the evidence than a collision occurring more than an hour after sunset between a car traveling in a certain direction and an unseen car ahead proceeding in the same direction, without *Page 206 lights; not that the jury must so infer. 25 Harvard Law Review, 306; Hepp v. Quickel Auto Supply Co.,37 N.M. 525, 25 P.2d 197.

For the reasons given, I dissent.

BRICE, J., concurs.