Seymour v. City of Elberton , 67 Ga. App. 426 ( 1942 )

On rehearing counsel for plaintiff in error is apparently so earnestly sincere in his statement that the original opinion wrongly applies the facts of this case to the admittedly correct principles of law announced in the headnotes that we feel it may be of some value to the profession to cite authorities in elaboration of the principles announced in the original opinion.

In Bird v. St. Paul Fire Ins. Co., 224 N.Y. 47 (120 N.E. 86, 13 A.L.R. 875), Judge Cardozo said: "The wrongdoer may be charged with those consequences and those only within the range of prudent foresight." In Fowlkes v. Southern Ry. Co., 96 Va. 742,745 (32 S.E. 464), the court held: "Even if an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote." In Milwaukee St. Paul R. Co. v. Kellogg, 94 U.S. 469,474 (24 L. ed. 256), the court said: "But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." 22 Rawle C. L. 124: "It has been held in many cases that a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience. The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again. A man's responsibility for his negligence must end somewhere. As has been well said: `One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable.'" (Italics ours.) In 82 A.L.R. 392 we find this statement: "The substance of it all, stated and restated in various ways, is that negligence carries with it liability for consequences which, in the light of attendant circumstances, could reasonably have been anticipated by a prudent man, but not for casualties which, though possible, were wholly improbable. One is not charged with foreseeing that which could not be expected to happen." In Kleinberg v. Lyons, 39 Ga. App. 774 (148 S.E. 535), this court held: "The intervening agency actually causing the injury was not such as the defendant could reasonably have anticipated or foreseen. This being true, the intervening agency must be taken to constitute the proximate cause of the plaintiff's injury. See Andrews v. Kinsel,114 Ga. 390 (2), 392 (40 S.E. 300, 88 Am. St. Rep. 25)." SeeGeorgia Power Co. v. Kinard, 47 Ga. App. 483, 486 (170 S.E. 688): "The liability of the defendant is limited to those consequences which it should reasonably have anticipated as the natural and probable result of its own act or omission. Mayor c.of Macon v. Dykes, 103 Ga. 847, 848 (31 S.E. 443); Ga.Power Co. v. Wood, 43 Ga. App. 542, 545 (159 S.E. 729);Rome Ry. c. Co. v. Robinson, 35 Ga. App. 521 (134 S.E. 132); Higginbotham v. Rome Ry. c. Co., 23 Ga. App. 753 (99 S.E. 638); 20 C. J. 367-371; Griffin v. Jackson Light c. Co.,128 Mich. 653 (87 N.W. 888; 55 L.R.A. 318, notes; 92 Am. St. Rep. 496)." The petition must allege sufficient facts to show that as a matter of law the acts complained of were the proximate cause of the injury. Powell v. Waters, 55 Ga. App. 307 (190 S.E. 615), gives the following rule: "In order to hold the defendant liable the petition must show either that the act complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer." This case is authority for the proposition that, "The proximate cause of an injury is ordinarily a question for the jury. But where it appears from the undisputed facts that the act or negligence complained of is not the efficient proximate cause of the injury, then the question is properly one for determination by the court." Also, the same authority states the following: "It was said, in Milwaukee St. Paul Railway Co. v. Kellogg, 94 U.S. 469, 475 (24 L. ed. 256): `The question always is: was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous 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?'"

In Gallovitch v. Ellis, 55 Ga. App. 780 (191 S.E. 384), we find this rule: "Where it appears from a petition that the negligence alleged against the defendant was not the proximate and effective cause of the alleged injury, a demurrer to such petition should be sustained." See also Cain v. State, 55 Ga. App. 376, 381 (190 S.E. 371): "If in a given case the injury complained of did not flow naturally and directly from the wrongful act or omission attributed to the defendant, or could not reasonably have been expected to result therefrom, or would not have resulted therefrom but for the interposition of some independent, unforeseen cause, the defendant's such antecedent wrongful act or omission would not be the proximate cause of the injury complained of." See Gillespie v. Andrews, 27 Ga. App. 509, supra: "While the determination of questions of negligence lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate cause of the injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to; and while it is also true that the mere fact that the injury would not and could not have resulted by reason of the defendant's acts alone will not of itself be taken to limit and define the intervening agency as constituting the proximate cause (Rollestone v.Cassirer, 3 Ga. App. 161, 173, 59 S.E. 442; Ga. Ry. PowerCo. v. Ryan, 24 Ga. App. 288, 100 S.E. 713), yet a demurrer to a petition should be sustained where it appears from the plaintiff's pleading that the negligence charged against the defendant was not the proximate and effective cause of the injury. Southern Ry. Co. v. Barber, 12 Ga. App. 286 (77 S.E. 172). " In Shaw v. Macon, 6 Ga. App. 306 (64 S.E. 1102): "The allegations of the petition clearly showing that the negligence charged against the defendant was not the main, controlling, preponderating, or proximate cause of his injury, the court did right in sustaining a demurrer and dismissing the petition." For a well-considered opinion dealing with this question from a different state of facts see Stallings v. Ga.Power Co., post, 436.

In the light of the authorities cited we are confirmed that the original opinion is correct. To follow the reasoning of able counsel for plaintiff in error to its ultimate conclusion would require this court to hold that municipalities should be required to design covers of water-meter boxes so as to insure their nonremoval, or else place guards or lights about them. This we are unauthorized to do.

Judgment adhered to. Broyles, C. J., and MacIntyre, J.,concur.