In giving my reasons for dissenting from the conclusion reached by the majority of the court, I will first state some of the leading facts, which the jury is presumed to have found. On the 17th of September, 1900, at about 6 P.M., George H. Rider, the plaintiff's intestate, was seated in a covered delivery wagon, slowly driving a single horse southerly on the west side of the double tracks of the defendant's railroad in Cortland avenue, Syracuse. As he approached a street which intersects said avenue at an acute angle, he turned to the east, going diagonally across the tracks, in order to enter Raynor avenue. The grade at this point was practically level, the rails were dry and the street in good order. As he started across, he looked back to the north toward a car of the defendant approaching from behind, which was then from 35 to 100 feet away, according to the varying estimates of the different witnesses. After looking toward the car, he whipped his horse with the lines, but before he got across the tracks, the car struck the wagon in the rear as it was moving in a diagonal direction to the east. The motorman, as his car came up to the wagon, was looking in the face of a man standing *Page 158 on the front platform with whom he was engaged in conversation. The car was moving at the rate of 6 or 8 miles an hour and the motorman made no effort to check its speed until about the time of the collision. He was then moving so slowly that when he hit the wagon, it was not overturned at first, but was shoved along on the track. The horse fell, sprang up, jerked himself loose and ran away. Although the danger of Mr. Rider was obvious to the motorman and he could have stopped the car within 8 feet, as there was evidence tending to show, he did not stop, but kept shoving the wagon along for a distance of 20 or 30 feet, when it tipped over. After thus capsizing the wagon, the car kept on for from 5 to 15 feet farther, shoving the wagon along on its side, before it stopped. When the wagon was overturned, Mr. Rider fell out, the wagon fell upon him, and he was under it as it was shoved forward on the track by the advancing car. When the car stopped, his right arm was through the front wheel of the wagon, his left arm was caught in the fender of the car, his skull was fractured and he soon died from the injuries thus received.
The question presented is, whether the plaintiff can recover, even if her intestate was negligent in driving upon the tracks, provided, after he had thus reached a place of danger, the defendant, by the exercise of reasonable care, could have avoided running over him?
Passing by the conflict in the evidence, as to whether the deceased was negligent in getting on the track and assuming that he was negligent in this respect, it does not follow that the defendant was absolved from all care and could run over him with impunity. There was evidence tending to show that after the collision, the car, under the circumstances, could have been stopped in 8 feet, but it did not stop until it had shoved the wagon along for at least 20 feet to the point where it tipped over, and even then the car did not stop until it had shoved the wagon on its side with the deceased under it, for 15 feet farther, as we must assume the jury found. Can we say, as matter of law, that the motorman was justified in not *Page 159 stopping the car, when a human life was in such imminent peril, and he could have stopped it in time to prevent the fatal result? Such a rule would be a reproach to jurisprudence and an encouragement to reckless conduct. As I understand it, our law is not subject to this imputation, but, on the other hand, the humane rule is in force that notwithstanding the previous negligence of the plaintiff, if, at the time when the injury was committed, it might have been avoided by the defendant by the exercise of reasonable care and prudence, an action will lie for the injury. (Costello v. Third Ave. R.R. Co., 161 N.Y. 317,322; Bittner v. Crosstown St. R. Co., 153 N.Y. 76, 82;Wasmer v. Del., L. W.R.R. Co., 80 N.Y. 212; Silliman v.Lewis, 49 N.Y. 379; Austin v. N.J. Steamboat Co., 43 N.Y. 75,82; Haley v. Earle, 30 N.Y. 208; Weitzman v. NassauEl. R.R. Co., 33 App. Div. 585; McKeon v. Steinway Ry. Co.,20 App. Div. 601; Bump v. N.Y., N.H. H.R.R. Co., 38 App. Div. 60; affirmed on opinion below, 165 N.Y. 636; Kenyon v.N.Y.C. H.R.R.R. Co., 5 Hun, 479; Radley v. L. N.W.R.Co., L.R. [1 App. Cas.] 154; Davies v. Mann. 10 M. W. 546;Isbell v. N.Y. N.H.R.R. Co., 27 Conn. 393, 404; Trow v.Vt. C.R.R. Co., 24 Vt. 487, 495.)
If the decedent had been injured at the time that the car first came in contact with the wagon, then, upon the assumption that he was negligent in getting on the tracks, there could have been no recovery. His own negligence in that event would have been a concurring, and, hence, a proximate cause, even if the defendant had negligently run against the wagon. But the injury was not inflicted when the car struck the wagon. A new act of the defendant, committed after the first contact, was the cause of the injury. It was the shoving of the wagon along, after the motorman knew of the decedent's peril, without stopping, when by the use of due care he could have stopped in time to save him, that caused his death.
If the negligence of the decedent was the remote, and the negligence of the defendant was the proximate cause of the *Page 160 accident, it is conceded that the plaintiff was entitled to recover. Causes are not measured by time but by events. A proximate cause, juridically considered, is an efficient act of causation with no cause intervening before the effect, while a remote cause is one that is separated from the effect by an intervening cause. The law looks at the proximate cause only. Injure non remota causa, sed proxima spectatur. What was the proximate cause of the injury in question? It was the failure of the motorman to stop his car, after he saw that it had collided with the wagon, in time to prevent the accident. When the car came in contact with the wagon, it was his duty to stop as soon as he could, and he could have stopped in eight feet, as the jury is presumed to have found, upon sufficient evidence. He not only failed to stop, but he shoved the wagon along for more than three times the distance within which he could have stopped, and the death of the intestate was the natural and probable result. The fact that he had time to stop but did not, shows that the negligence of the decedent and that of the motorman were not concurrent. The one preceded the other by time enough for the motorman to discharge the duty of prompt action, which the circumstances required. The negligence of the motorman intervened between the negligence of the decedent and the infliction of the injury, and thus became the proximate cause thereof. The negligence of the decedent was remote, as, between it and the injury, another cause intervened, without which the injury would not have been inflicted. The law regards the last cause, without which the accident could not have happened, as the proximate cause. If the motorman had time, after he knew that the decedent was in a dangerous situation, to think and act and thereby prevent the casualty, the jury could find him guilty of negligence, and that negligence being nearest to the time of the injury was proximate and not remote. The prior negligence of the deceased did not excuse the subsequent negligence of the motorman, nor make the latter a remote cause of the accident, because he had the last clear chance to avoid the sacrifice of life. While but *Page 161 few seconds intervened between the two causes, they were as effective, as so many hours would have been, to make the latter cause proximate, provided there was time enough to exercise the care, which would have prevented the later cause from coming into existence.
As we recently held in an important case: "The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred; and the act of one person cannot be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it." (Laidlaw v. Sage, 158 N.Y. 73.)
In Costello v. Third Avenue Railroad Co. (supra), which is analogous in fact and principle to the case now before us, Judge BARTLETT said: "Even if contributory negligence is assumed, for the argument's sake, the question remains whether the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence. * * * Was the plaintiff's alleged contributory negligence the direct proximate cause of the accident? It was for the jury to say whether this injury of the plaintiff would have happened if the motorman had vigilantly discharged his responsible duties in the premises." (p. 322.)
In a late case in the Supreme Court of the United States it was held that "Although the rule is that even, if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence. * * * The jury might well be of opinion that while there was some negligence on his part in standing where and as he did, yet that the officers of the boat knew just where and how he *Page 162 stood, and might have avoided injuring him if they had used reasonable care to prevent the steamboat from striking the wharf with unusual and unnecessary violence. If such were the facts, the defendant's negligence was the proximate, direct and efficient cause of the injury." (Inland Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 558, 559.)
In a still later case the same court said: "Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies v. Mann, 10 M. W. 546), that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence." (Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 429.)
The elementary writers are equally emphatic. "The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. * * * It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort, in which this rule is any longer disputed; although the same rule, in substance, but inaccurately stated, has been made the subject of strenuous controversy. But, furthermore, the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was more immediately caused by the omission of the defendant, after having such notice of the plaintiff's danger as would put *Page 163 a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precaution as a prudent man would take under similar notice. This rule is almost universally accepted. The most reckless persistence, on the part of the one exposed to danger, will not justify another in consciously refraining from using care to avoid injury to him." (1 Shearman Redf. on Negl. [5th ed.] § 99.)
So Mr. Wharton says: "It is not enough to say, * * * that if the injury would not have occurred had it not been for the plaintiff's negligence, then the plaintiff's negligence is to be regarded as the cause of the injury. Of multitudes of antecedents can it be truly said, that if they had not existed the injury would not have occurred; yet of how few of such antecedents can it be said that they juridically caused the injury." (Wharton on Negl. [4th ed.] 323.) In a later section the same author quotes with approval the following from the opinion in Isbell v. N Y N.H.R.R. Co. (supra): "A remote fault in one party does not of course dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity, to say nothing of law, demands this; and it is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accidents are to a greater or less extent incident to human affairs. Preventive remedies must therefore always be proportioned to the case in its peculiar circumstances, to the imminency of the danger, the evil to be avoided, and the means at hand of avoiding it." (§ 340.) He further quotes with approval from Trow v. Vt. C.R.R. Co. (supra) as follows: "Therefore, if there be negligence on the part of the plaintiff, yet if, at the time when the injury was committed, it might have been avoided by the defendant, in the exercise of reasonable care *Page 164 and prudence, an action will lie for the injury. So in this case, if the plaintiff were guilty of negligence, or even of positive wrong, in placing his horse on the road, the defendants were bound to the exercise of reasonable care and diligence in the use of their road and management of the engine and train, and if for want of that care the injury arose, they are liable." (§ 341.)
In Patterson's Railway Accident Law the following may be found: "That negligence upon the part of the plaintiff which bars his recovery from the defendant must have been a proximate cause of the injury, and it is not a proximate, but only a remote, cause of the injury, when the defendant, notwithstanding the plaintiff's negligence, might, by the exercise of ordinary care and skill, have avoided the doing of the injury." (§ 58.)
"Although a person be placed in peril by his own negligence, or that of another, yet the unoffending party must nevertheless use such care, under the circumstances, to prevent injury, as a person of ordinary prudence would usually exercise in the same predicament. * * * If A. by his own negligence, be placed in a peril of injury from B., it is the duty of B., on discovering A.'s peril, to use in good faith whatever opportunity may be present to avoid injury to A. If B. neglect to do this, such neglect and not the previous neglect of A. will be regarded as the proximate cause of the injury, as then, for the first time, it may be, B. owes A. a duty to use some degree of care for his safety." (Thomas on Negl. 360.)
Judge Thompson lays down the rule in this form: "The sound principle, then, is that the defense of contributory negligence is not available where the defendant was guilty of the negligent act or omission subsequently to the time when he ought to have known that the negligence of the plaintiff, or of the person injured had created a position of peril." (Thompson on Negl. [2d ed.] § 232.) The learned author further says: "The courts are almost universally agreed that notwithstanding the fact that the plaintiff or the person injured *Page 165 has been guilty of some negligence in exposing his person or property to an injury at the hands of the defendant, yet, if the defendant discover the exposed situation of the person or property in time, by the exercise of ordinary or reasonable care after so discovering it, to avoid injuring it, and nevertheless fail to do so, the contributory negligence of the plaintiff or the person injured does not bar a recovery of damages from the defendant." (§ 238.)
"The fact that one has placed himself in a position of danger can never be an excuse for another carelessly or recklessly injuring him. It may be said in such a case, the negligence of the plaintiff only put her in a position of danger, and was therefore only the remote cause of the injury, while the subsequent intervening negligence of the defendant was the proximate cause." (Healey v. Dry Dock, E.B. B.R.R. Co., 14 J. S. 473, 481.)
I think that the negligence of the defendant was the "proximate" cause of the injury, as that word is understood by the courts and elementary writers, and that the defendant, after notice of the decedent's danger, could not negligently run him down, any more than it could willfully run him down. I regret that the court is about to lay down a rule, which will permit one man to negligently run over another, whenever the latter by his own negligence gets into a place of danger, even if the former discovers it in time to save him by using reasonable care. Such a rule puts life and limb in peril and withholds from the citizen the protection which it is the duty of courts to provide. My vote is in favor of affirmance.
PARKER, Ch. J., GRAY and HAIGHT, JJ., concur with O'BRIEN, J.; BARTLETT and MARTIN, JJ., concur with VANN, J.
Judgment reversed, etc. *Page 166