Southwestern Gas Electric Company v. Deshazo , 199 Ark. 1078 ( 1940 )

I think this case should be affirmed. The opinion of the majority states: "The first matter that appears is that the proximate cause of that unfortunate occurrence was the cutting of this particular pine tree, which fell and broke a high tension wire. Certainly if this tree had not been cut by the three farmers, who have been exonerated from all negligence, there would have been no broken line, no contact of one line with another and the plaintiff would never have received the shock from which she suffered. If this was the sole proximate cause of the injury, the appellee must fail in her suit to recover compensation for the injuries alleged. The authorities governing this situation are numerous."

The first case cited by the court to support this declaration is the case of Pittsburgh Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647, 18 L.R.A., N.S. 905. In that case a 13-year-old boy picked up a cap and took it home and kept it about a week, and then, when playing with it, it exploded and injured him. The evidence, however, showed that the reduction company had been guilty of no negligence, kept the caps inside the building in a proper place, and it was not known how they got out of the building. The court stated, however: "It is a well settled general rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. The difficulty arises in each case in applying the principle to a given state of facts."

The court further said, in speaking of the boy's mother: "She admits that when he would leave them on the floor she would pick them up and lay them away for him. This continued for a week, and then, with her knowledge, he carried them to school. Her course of conduct broke the causal connection between the original negligent act of appellant and the subsequent injury of the plaintiff. It established a new agency, and the possession by Charlie Copple of the caps or shells was thereafter referable to the permission of his parents, and not to the original taking. Charlie Copple's parents having permitted him to retain possession of the caps, his further acts in regard to them must be attributed to their permission, and were wholly independent of the original negligence of appellants."

The next case relied on to support the majority opinion that the farmers' cutting the tree down was the proximate cause of the injury, is Bona v. S. R. Thomas Auto Co., 137 Ark. 217, 208 S.W. 306. The court in that case said, after citing a number of cases: "It is equally well settled by the decisions of our own and other courts that `where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury'."

The next case relied on to support the conclusion of the majority, is the case of Morgan v. Cockrill, 173 Ark. 910,294 S.W. 44. In that case the court said, in speaking of electric companies' duties: "This duty is not limited to keeping their own wires out of the streets, or other public highways, but extends to the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and of its transmission thereby to any one using the streets."

The majority opinion then refers to the case of S. L. I. M. So. Ry. Co. v. Bragg, 69 Ark. 402,64 S.W. 226, 86 Am. St. Rep. 206. That was a suit against the railroad company to recover for fright. There is no question in it of the intervention of some other person. The party alighted from the train of her own volition, being assisted by the employees of the company. She did not get off at the place she wanted to, but a few feet away. She was not a stranger and the court held that putting her off negligently a few feet from the place she desired to get off was not the cause of her fright.

The facts in none of these cases above cited are at all similar to this case, and I do not think any one of them supports the holding of the majority.

"Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. The question always is, was there any unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?" 22 R.C.L. 135.

"Thus it is not necessary that the proximate cause be the sole cause, but it must be a concurring cause, such as might reasonably have been contemplated as involving the result under the attending circumstances; where several causes concur to produce certain results, either cause may be termed a `proximate cause,' if it is an efficient cause of the result in question." 56 C.J. 842.

Considering the dangerous character of the force produced by the electric company, there was a duty imposed on it to see that its wires were properly insulated. If not insulated, it must place its wires underground or at some inaccessible place, where they will not be likely to do any harm. When one can accumulate or produce such a deadly force as electricity, he should be compelled to know that the means of its distribution are in such condition that those whose business brings them in contact with it may do SO in safety, and if this dangerous force causes injury because some third person cuts a tree down on the wires, the electric company is not only liable, but its act is the proximate cause of the injury.

"The true rule is, that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft cited case of the squib thrown in the market place." Milwaukee St. Paul Ry. Co. v. Kellogg,94 U.S. 474, 24 L. Ed. 256; Scott v. Shepherd, 2 W. Bl. 892.

When one had control of as dangerous an agency as electricity and transmits it over wires, there might be one or twenty independent agencies, and still the original company that controls the electricity would be liable; its action would be the proximate cause. Like the case of Scott v. Shepherd, supra, where one threw a squib into a market place where there were many people, and one after another picked up the squib and threw it to get it away from himself, and finally exploded and injured a person, the man who first threw the squib was held liable and his act was the proximate cause.

"In other words, it is sufficient to constitute proximate cause that the negligence for which recovery is sought was the efficient cause which set in motion the chain of circumstances leading up to the injury itself (Wengert v. Lyons, (Mo.App.), 273 S.W. 143; Strayer v. Quincy, O. K. C. R. R. Co., 170 Mo. App. 514, 156 S.W. 732); and the primary cause will be the proximate cause where it is so linked and bound to the succeeding events that all create or become a continuous whole, the first so operating upon the others as to make it primarily productive of the injury." Cregger v. City of St. Charles,224 Mo. App. 232, 11 S.W.2d 750.

"We think it is sufficient to constitute proximate cause that the negligence for which recovery is sought is the cause which sets in motion the chain of circumstances leading up to the injury, and the primary cause will be the proximate cause where it is so linked and bound to the succeeding events that all create or become a continuous whole, with the first so operating on the others as to make the primary cause productive of the injury. The question of proximate cause and the defense of intervening causes is usually a question for the jury. . . . We think it may be said that in this state the doctrine of concurrent negligence applies. A defendant may be liable even if the injury was not caused by his sole negligence. If his negligence concurred with that of another and became a part of the direct and proximate cause, he was liable, although not the sole cause. And these acts of negligence are questions for the jury." Jenkins v. Springfield Traction Co.,230 Mo. App. 1235, 96 S.W.2d 620.

Where a truck driver left the gate open where a large hog was confined in a dry pen and the hog escaped, went in to a corn field and frightened a team, it was held that leaving the gate open was the proximate cause of injury, and among other things, the court said: "Further, the evidence was sufficient in our opinion to authorize a finding by the jury that plaintiff's injuries were the natural and probable consequences of the leaving of the gate open by the driver of the truck, through which the hog confined therein passed out and into the cornfield and came upon the plaintiff's team and frightened it and caused it to run." Hockaday v. Panhandle Eastern Pipe Line co., 66 S.W.2d 956.

The authorities are practically unanimous in holding that the question of proximate cause and the defense of intervening causes is usually a question for the jury. I think it a question for the jury in this case, and not one for the court.

There may be no provision in the rules, as said in the majority opinion, that the owner of the high tension lines should anticipate every possible condition whereby a sound, green tree approximately forty feet away might be so broken down or storm swept as to make it necessary to go upon the lands of another and cut the trees; but there is a provision in the law that in handling an agency as dangerous as electricity, the company handling it should exercise the highest degree of care. It should either insulate its wires, or place them underground, or in some inaccessible place.

As this court recently said: "A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury. It is the duty of the company, under such condition, to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in this condition at such places. And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated." Ark. P. L. Co. v. Cates, 180 Ark. 1003,24 S.W.2d 846.

The majority opinion states that the electric company is only required to exercise ordinary care, and cites the case of Morgan v. Cockrill, 173 Ark. 910, 294 S.W. 44, where the case was reversed because of the giving of an instruction requiring a high degree of care. But the court said in that case: "This case varies with danger which will be incurred by negligence. In cases where the wires carry a strong and dangerous current of electricity, and the result of negligence might be exposure to death or most serious accident, the highest degree of care is required." Every authority cited in that case that discussed the degree of care, holds that the highest degree of care is required where the wires carry a dangerous current of electricity.

Of course the cutting of the tree by the farmers was not the intervention of such an agency that would relieve the appellant from liability. They might have cut one or forty trees where they were, and such act would not have injured the telephone operator four miles away. The reason she was injured was because of the high voltage of electricity carried over the wire.

I, therefore, respectfully dissent from the holding of the majority, and believe that under the circumstances and evidence in this case, the facts were for the jury, and that the judgment should have been affirmed. Mr. Justice HUMPHRIES agrees with me in the conclusions herein stated.