Brandon v. Gulf City Cotton Press & Manufacturing Co. , 51 Tex. 121 ( 1879 )

Bonner, Associate Justice.

The court in this case submitted to the jury the question of the liability of the defendant for damages to the cotton while in its possession and on the way to the steamer Clyde for shipment. The jury having found a general verdict for the defendant, and there being no alleged error in the proceedings up to this point, the presumption must be indulged, that at the time the cotton was thus placed upon the wharf, no such damage had accrued as would entitle the plaintiff to a judgment.

Plaintiff’s case seems to proceed upon the theory that he is entitled to recover for damage subsequently developed, which had as its primary origin the wet condition of the cotton when delivered upon the wharf. Upon this subsequently developed damage, is based his alleged special damage, for which he seeks recovery. The action of the court in the charge upon this issue as given, and in the refusal to give the special charges asked, is assigned as error, and the determination of this question is decisive of the case.

The jury were virtually instructed by the court that the plaintiff’s right to recover depended upon the question of his knowledge or ignorance of this wTet condition of the cotton at the time he received and shipped it. It is contended by the plaintiff’ that whether his shipment of the cotton, under the circumstances as developed by the testimony, caused the damage, was a question of contributory negligence, which should have been left to the jury; and that by the charge of the court it was virtually taken from them.

If this had been a question purely of contributory negligence, we think there would have been error in not submitting it as a question of fact for determination by the jury; as, under the decision of this court, the question of negligence, as a general rule, is one of fact, to he submitted, by appropriate instructions, for their consideration. ( Texas and Pacific Railroad Co. v. Murphy, 46 Tex., 356.) This is the rule also deduced by Mr. Cooley, as supported by a great majority of the cases. (Cooley on Torts, 670.)

The testimony of the plaintiff himself, however, shows that he had full knowledge of the condition of the cotton before the bill of lading was signed, and that in fact he only received a clean bill of lading by reason of his urgent solicitation and as a matter of personal favor. It was further in evidence, that the immediate cause of the injury was the continued freezing and thawing of the cotton after it had been shipped by the plaintiff' from Galveston and had reached the city of Rew York.

The question, then, arises: Was the plaintiff, under the circumstances as developed by the testimony, entitled to recover for subsequently-accrued damage, after he had received the cotton and had exercised an' independent control over it, with full knowledge of its condition and liability to injury?

It is well settled, that it is not only the moral but the legal duty of one who seeks redress for another’s wrong to use due diligence to prevent loss thereby. The principle applies to a breach of contract, and a party is not entitled to compensation for injurious consequences from such breach, so far as he had the information, time, and opportunity necessary to prevent them. (Sedg. on Dam., marg. p. 94, and authorities cited.)

It is a familiar general rule, that damages, to be recovered, must be both the natural and proximate consequences of the act complained of. But, as said by Mr. Sedgwick, it is far easier to lay down this general proposition than to apply it to a particular case. When we come to analyze causes and effects, and undertake to decide what is the natural result of a given act, and what is to be regarded as immaterial,— what is proximate and what remote,—we shall find ourselves involved in serious difficulty. (Sedg. on Dam., 66.)

This very difficulty, however, has forced us to adopt general rules, arbitrary though some of them may be, limiting this liability. As said by Lord Bacon: “ It were infinite for the law to consider the cause of causes, and their impulsion one upon another; therefore it contenteth itself with the immediate cause and judgeth of acts by that, without looking to any further degree.” (Bac. Max. Reg., 1.)

In the elaborate and well-considered case of Cuff, Administratrix, v. Newark and New York R. R. Co., 35 N. J., (6 Vroom,) 32, it is said, and many authorities cited to sustain the proposition, that the intervention of the independent act of a third person between the wrong complained of and the injury sustained, and which act was the immediate cause of the injury, is made a test of that remoteness of damage which forbids its recovery.

In the recent work of Mr. Wharton on Negligence, the question, that it is a bar to the plaintiff’s right of recovery if he break the causal connection between the injury received by himself and the defendant’s negligence, is fully considered and approved in chapters 3 and 9 and authorities cited in notes.

If the independent act of a third person would break this connection and relieve the defendant from liability, it is believed that the principle should apply with equal, if not greater force, where this interruption is made by the plaintiff himself with full knowledge of the facts.

Although the question of contributory negligence proper is one of fact for the consideration of the jury, under appropriate instructions, yet the question of remoteness of damage is one of law to be decided by the court.

It is well settled, that the charge of the court should have reference to the issues made by the pleadings and the evidence.

Tested by the above rules of law, in their application to the undisputed facts of this case, we do not think there was error in the general charge of the court, or in the refusal of the special charges asked, and the judgment is affirmed.

Affirmed.