Mahoney v. Beatman , 110 Conn. 184 ( 1929 )

In Monroe v. HartfordStreet Ry. Co., 76 Conn. 201, 207, 56 A. 498, this court by HAMERSLEY, J., defined "cause" as follows: "When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result." This definition was quoted by us as late as the case of Santini v. Levin, post, 248, 252, 147 A. 680, with the added comment that it was "perhaps as readily understood an explanation of the sense in which we use proximate cause as any." TheMonroe case was followed by Smith v. ConnecticutRy. Ltg. Co., 80 Conn. 268, 270, 67 A. 888, decided by a court made up of BALDWIN, C. J., HAMERSLEY, HALL, PRENTICE and THAYER, JJ., and there, speaking by BALDWIN, C. J., it was said: "That only is a proximate cause of an event, juridically considered, which, in a natural sequence, unbroken by any new and intervening cause, produces that event, and without which that event would not have occurred. It must be an efficient act of causation separated from its effect by no other act of causation." This definition has since been repeated exactly or with some modification of language in at least seven decisions, and in five of them it sufficed to solve typical problems in proximate causation.Miner v. McNamara, 81 Conn. 690, 72 A. 138;Swayne v. Connecticut Co., 86 Conn. 439, 85 A. 634,737; Kelsey v. Rebuzzini, 87 Conn. 556, 89 A. 170;Howard v. Redden, 93 Conn. 604, 107 A. 509; Lombardi v. Wallad, 98 Conn. 510, 120 A. 291. Precedent authority of such weight must be held in high regard and no departure from it should be made unless it very clearly appears that injustice has resulted or is likely to result if we continue to follow it.

The statement in the Smith case naturally divides itself into two parts. The first is an adaptation of the proposition in the Monroe case, that harm to be deemed a proximate result of wrong conduct must follow from it in a "natural sequence." This is not at all to say that to be compensable harm must have been reasonably foreseeable. The latter proposition puts the trier in the shoes of the wrongdoer and looks forward; a consideration of "natural sequence" is made"ex post facto," the problem is looked at in the light of all the circumstances, known, knowable or unknowable in advance, as they have ultimately appeared, and the question is, was the harm so outside the range of human experience that it could be said to be not a natural result. Bohlen, 40 American Law Register (N.S.) 86. This limitation upon liability has the support of eminent legal students and of almost innumerable decisions. Bohlen, Studies in the Law of Torts, p. 261; 1 Sedgwick on Damages (9th Ed.) § 111; 1 Street, Foundations of Legal Liability, p. 111; 1 Sutherland on Damages (4th Ed.) § 34; 1 Shearman Redfield on Negligence (6th Ed.) §§ 26, 28; 6 Words Phrases (1st Series) p. 5760; 3 Words Phrases (2d Series) p. 1328. It may no doubt be logically argued, as Salmond, Smith and Green do, that a wrongdoer, though not guilty of intentional wrong, should be held liable for all the harmful results caused by his wrongdoing, yet after all, as has been repeatedly said, the question is a practical question, not one of bare logic and, as Smith also says, in the last analysis whether any limitation is to be placed upon the liability of a wrongdoer is a question of "social policy." I think the limitation of liability for wrongdoing to those results which follow in a natural sequence accords with an innate sense of justice in the ordinary man. There is, moreover, an entire absence of any showing of injustice having resulted from the adoption of this limitation by this court some twenty-five years ago and its retention since that time. In so far as the majority opinion rejects the test of the foreseeability of the resulting harm I am in entire accord with it. That it meant to go no farther and to leave untouched the limitation of liability to those results which follow upon wrongdoing in a natural sequence I am quite ready to believe.

The other portion of the definition in the Smith case has to do with that element in proximate causation generally referred to as an intervening cause. The proposition is stated in that case in two ways: The chain of causation must be "unbroken by any new and intervening cause"; the wrongdoing "must be an efficient act of causation separated from its effect by no other act of causation." I think it is very likely true, as the majority opinion suggests, that these statements are not easily to be understood and likely to be misleading, and that they do not afford a very practical test for solving problems of proximate causation, particularly when it becomes necessary that they be applied by a jury composed of laymen. With the effort of the majority opinion to find a test which will be more easily understood and applied I am in sympathy. Moreover, if the test which it lays down be properly understood it probably comes as near as it is possible to get to a sound statement of a broad general principle. That test, as I understand it, is, was the wrongdoing a substantial factor in producing the harm which followed. This is an adoption of Professor Smith's formula stated in his article, 25 Harvard Law Review, 310. In a footnote Professor Smith suggests that in the formula "efficient" or "continuously efficient" might be substituted for the word "substantial." The suggested words are not at all synonymous with the word "substantial" chiefly because they import the additional and very important element of activity. It is just here that I am afraid the suggested test in the majority opinion will be misunderstood, particularly if it is used in a charge to the jury. It is only when the element of continuing activity is imported into the phrase "substantial factor in producing" from the last word used in it, that its true intent appears. It is only when the phrase is read as meaning that the wrongdoing must be an efficient factor to a material extent in producing the harm which followed, that it seems to me to carry the intended significance.

One other thing I think should be said upon this phase of the question: At best such a test as that proposed can be but the statement of a broad general principle. One has but to study the various categories of situations involving the problem of intervening cause set out by Salmond in his work on Torts (6th Ed.) pages 145 et seq., or by Beale, 33 Harvard Law Review, 636, to appreciate that no one formula will adequately meet the needs of all of them. Every writer upon this subject starts out with the axiomatic proposition that a wrongdoer is not to be charged with all the harmful results which may be considered from the standpoint of logic or philosophy as caused by his wrongdoing and the effort is to arrive at some test, some principle, some formula, which can be applied to distinguish between those for which he is to respond and those for which he is not. The trouble is, that the circumstances which morally or practically are material in determining where the line should be drawn are not common to the various problems presented; thus the circumstances which intervene may be natural phenomena, or the involuntary and unlawful act of a third person, or his negligent conduct, or his voluntary but lawful act, or his voluntary and wilfully wrong act; or some act of the injured party himself may intervene and it may be a negligent act on his part or a wilfully wrong act. Take for instance these two situations: A plaintiff suffers a serious cut by reason of the negligence of the defendant and calls a competent physician who dresses the wound and instructs him to dress it himself until he calls again. The plaintiff in dressing the wound on the following day negligently uses foul dressing by reason of which infection sets in and the injury is made much more serious; for the additional harm to him it would hardly be contended that the defendant was liable. But suppose the plaintiff properly dresses the wound on the intervening days but when the physician comes again he is himself guilty of negligence in using foul dressing whereby infection results; in this case it would hardly be contended that the defendant was absolved from liability for the additional harm. Here there is no distinction in the character of the acts making up the chain of causation; the difference lies wholly in the person guilty of the negligence. Could the question of the liability of the defendant in both these cases fairly be left to a jury simply upon the statement that they were to determine whether the defendant's wrongdoing was a substantial factor in producing this additional harm? Obviously not. This points my suggestion that as each case arises something more than a broad general principle will usually be found necessary to arrive at a correct solution, particularly as the problems are involved in instructions to juries. See Lombardi v. Wallad, 98 Conn. 510, 517, 120 A. 291. Indeed, Professor Smith does not rely upon the broad general statement which is adopted in the majority opinion, but he adds explanations and illustrations which serve to direct its application in the particular circumstances that may be involved. 25 Harvard Law Review, 311. It is well to have a general rule, but it is necessary also to recognize that its application must be adjusted to the particular facts of each specific case. In a charge to a jury a statement of the general rule may perhaps help, but in any event there should be a specific charge upon the particular circumstances of the case involved.

With reference to the particular case before us, I am not able to see how the discussion in the majority opinion is involved at all. The decision of the lower court did not go upon the theory that there was any actusinterveniens but upon the theory that there was negligent conduct on the part of the plaintiff's driver which while it did not proximately contribute to produce the accident still did result in greatly increasing the damage from it. The principle upon which the case was decided is illustrated by our own decision of Smithwick v. Hall Upson Co., 59 Conn. 261, 271, 21 A. 924. The plaintiff, a workman, had been warned not to stand in a certain place on a platform next a building under construction, at a point where there was no railing; he did take his stand there and was seriously injured by the falling of the wall of the building due to the negligence of the defendant. It was held that his taking his stand where he did was not contributory negligence because not the proximate cause of his suffering the injury complained of, and then the court goes on to say: "And if the claim means that the plaintiff by his act increased the injury merely, then if this were true it would not be such contributory negligence as would defeat the action. To have that effect it must be an act or omission which contributes to the happening or event which caused the injury. An act or omission which merely increases or adds to the extent of the loss or injury will not have that effect, though of course it may affect the amount of damages recovered in a given case." See also Wright v. Illinois Miss. Tel.Co., 20 Iowa 195, 214; Gould v. McKenna, 86 Pa. 297;O'Keefe v. Kansas City Western Ry. Co.,87 Kan. 322, 124 P. 416; King v. Henkie, 80 Ala. 505; 1 Shearman Redfield on Negligence (6th Ed.) § 95. It seems to me that these cases establish a just and sound rule. Let the defendant answer for all harm resulting from his wrongdoing, but is it just to make him answer for the harm which results by reason of the plaintiff's own wrongdoing? After all, from the standpoint of justice is not such a situation upon a strict parity with one where the results of an injury done by the wrongful act of a defendant have been increased by the improper refusal or neglect of the plaintiff to obtain medical assistance or take due care for his own recovery?Flint v. Connecticut Hassam Paving Co., 92 Conn. 576,577, 103 A. 804.

It is true, as the majority opinion points out, that the finding of the trial court is only that the plaintiff's car before the injury was proceeding at an unreasonable speed. Upon a strict construction of the finding it might be said that this statement falls short of charging the driver of the plaintiff's car with negligent conduct and so the conclusion of the trial court fails of support even as regards the principle it adopted. This situation, however, would call, not for a remanding of the case with direction to enter judgment for the plaintiff for all the injuries following upon the accident, but for remanding it to be proceeded with according to law.