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submitted to the jury to find whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator; whether it was a result which, under the circumstances, would naturally follow from the burning of the elevator; and whether it was the result of the continued effect of the sparks from the steamboat, without the aid of other causes not reasonably to be expected. All this is alleged to have been erroneous. The assignment presents the oft-embarrassing question, what is and what is not the proximate cause of an injury. The point propounded to the court assumed that it was a question of law in this case, and in its support the two cases of Ryan vs. The New York Central R. R., 35 N. Y. 210, and Kerr vs. Penn R. R. Co., 62 Penn. St. 353, are relied upon. Those cases have been the subject of much criticism since they were decided, and it may perhaps be doubted whether they have always been quite undestood. If they were intended to assert the doctrine that when a building has been set on fire through the negligence of a party, and a second building has been fired from the first, it is a conclusion of law that the owner of the second has no recourse to the negligent wrongdoer, they have not been accepted as authority for such a doctrine, even in the States where the decisions were made. (Webb vs. The Rome, Watertown, and Ogdensburg Railroad Company, 49 N. Y. 420, and Pennsylvania Railroad Company vs. Hope, 80 Penn. St. 373.) And certainly they are in conflict with numerous other decided cases. (Kellogg vs. The Chicago and Northwestern Railroad Company, 26 Wis. 224; Perley vs. The Eastern R. R. Co., 98 Mass. 414; Higgins vs. Dewey, 107 Mass. 494; Tent vs. The Toledo, Peoria and Warsaw Railroad Co., 49 Ill. 349.)

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 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 a 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. (2 Blacks. Rep. 892.) 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? It is admitted that the rule is difficult of application. 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. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible nature of the saw-mill and the piles of lumber. Most of these circumstances were ignored in the request for instruction to the jury. Yet it is obvious the immediate and inseperable consequences of negligently firing the elevator would have been very different if the wind had been

less, if the elevator had been a low building constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the defendants might well have anticipated or regarded the probable consequences of their negligence as much more far-reaching than would have been natural or probable in other circumstances. We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or non-feasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case, the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Here lies the difficulty. But the inquiry must be answered in accordance with common understanding. In a succession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence, and an adjoining building be destroyed without any negligence of the occupants of the first, no one would doubt that the destruction of the second was due to the negligence that caused the burning of the first. Yet in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burning of the first. The same might be said of the burning of the furniture in the first. Such refinements are too minute for rules of social conduct. In the nature of things there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of the jury to look at this succession of events or facts and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.

If we are not mistaken in these opinions, the Circuit Court was correct in refusing to affirm the defendants' proposition, and in submitting to the jury to find whether the burning of the mill and lumber was a result naturally and reasonably to be expected from the burning of the elevator, under the circumstances, and whether it was the result of the continued influence or effect of the sparks from the boat, without the aid or concurrence of other causes not reasonably to have been expected. The jury found in substance that the burning of the mill and lumber was caused by the negligent burning of the elevator, and that it was the unavoidabe consequence of that burning. This, in effect, was finding that there was no intervening and independent cause between the negligent conduct of the defendants and the injury to the plaintiff. The judgment must, therefore, be affirmed.

The judgment of the Circuit Court is affirmed. Milwaukee Railway Co. -The Central Law Journal.

Kellogg vs. St. Paul &


June 7, 1877.

PERSONAL INJURY-BARE LICENSEE.-The plaintiff, a licensed waterman, having complained to a person in charge that a barge of the defendant's was being navigated unlawfully, was referred to defendant's foreman. While going along defendant's premises in order to see the foreman, the plaintiff was injured by the falling of a bale of goods so placed as to be dangerous, and yet to give no warning of danger. Held, (1) that the plaintiff was not a bare licensee, but was on defendant's premises by the invitation of defendant, and for a purpose in which both plaintiff and defendant had a common interest; and (2) that the injury was caused by a trap or concealed source of mischief within the meaning of Bloch vs. Smith, 10 W. R. 387, 7 H. & N. 736. This was an action to recover damages for personal injuries, tried before the deputy judge of the Surrey County Court, held at Southwark, and a jury. The facts of the case are sufficiently stated in the judgment of the Court. The jury found a verdict for plaintiff for £35 damages.

An order for a new trial was obtained on the ground that there was no invitation to the plaintiff, and that the plaintiff, at the time of the alleged negligence, was a bare licensee, and also on the ground of misdirection by the deputy judge in not telling the jury that there was no concealed danger at the defendant's wharf, and that the peril, if any, was apparent and known to the plaintiff.

KEMP, Q. C., now showed cause.

MCCALL, in support of the order, cited Indermauer vs. Dames, 14 W. R. 586, L. R. 1 C. P. 274, 15 W. R. 434, L. R. 2 C. P. 311; Sullivan vs. Waters, 14 Ir. C. L. Rep. 460; Scott vs. London Dock Company, 13 W. R. 99, 410, 3 H. & C. 596; Toomey vs. The London, Brighton and South Coast Railway Co., 6 W. R. 44, 3 C. B. N. S. 146; Wilkinson vs. Fairrie, 1 H. & C. 633, 11 W. R. C. L. Dig. 100; Holmes vs. North-Eastern Railway Co., 17 W. R. 800, L. R. 4 Ex. 254, L. R. 6 Ex. 123, 19 W. R. C. L. Dig. 49. Cur. adv. vult.

June 7.-DENMAN, J., delivered the judgment of the Court (DENMAN and LOPES, JJ.):

In this case the facts were as follows: The plaintiff, a licensed waterman, was on the day before the day in question waiting for employment. According to a rule of the Thames Conservancy Board, barges of over fifty tons burthen ought to have two men employed to work them. The defendant's barge had been used with one man only, and the plaintiff went to complain to the person in charge. He was referred to one Reckles, the defendant's foreman, who would be there the next day. On the next day he was going to see Reckles, and walking toward him on the defendant's premises, when a bale of goods which had been, as the jury found, negligently left by the defendant's servants nicely balanced at the edge of the warehouse trap-door, from which such bales are lowered, suddenly fell upon the plaintiff and injured him. Under these circumstances we think the verdict for the plaintiff was warranted by the authority of Corby vs. Hill, 6 W. R. 575, 4 C. B. N. S. 556, and Indermauer vs. Dames, and other cases. He was there on lawful business, in which both the plaintiff and defendant had an interest, and he was there by the invitation of the defendant's servants, who referred him to their fore

man in a matter. relating to the defendant's business. He was proceeding to the place mentioned by those who directed him, aud the bale which caused the injury was placed in such a position as to be dangerous, and yet to give no warning of danger to any one passing by the spot where it fell, so that it was in the nature of a trap or concealed source of mischief within the meaning of those words, as used in Bolch vs. Smith, 10 W. R. 387, 7 H. & N. 736, and in the case of Sullivan vs. Waters, cited by the counsel for the defendant ; so that, whether the plaintiff could be properly described as a bare licensee or not, the defendant would be liable. We, therefore, think that the order ought to be discharged.

Order discharged. White vs. France.

Abstract of Decisions.



1. By judgment-creditor against purchaser at sheriff's sale; notice, etc. 1. A judgment-creditor can not maintain an action against the purchaser of real estate at sheriff's sale, to recover damages for the breach of the contract of sale. 2. Where it is sought to charge such purchaser with the loss resulting from a resale caused by his refusal to pay the price at which the property was struck off to him at the first sale, the action, if maintainable, should be brought by the sheriff. 3. Where the court refused to confirm a sale for the reason that the purchase-money had not been paid, and, without condition or qualification, ordered the sheriff to proceed to sell the premises as theretofore ordered. Held, that no notice having been given to the purchaser at the first sale that the resale was to be at his risk, he was authorized to regard the sale to him as abandoned. Galpin vs. Lamb.

2. "Civil Damages" in Ohio: action under; malpractice.-1. An empiric, under the Act of May 5, 1868 (S. & S. 523), is liable to a civil action for malpractice, notwithstanding it is made a penal offense for such person to practice medicine in any of its departments. 2. In an action for malpractice, where the defendant is declared against as a physician, proof that he held himself out as 66 a cancer doctor," and as having skill and experience in the treatment and cure of cancers, substantially supports the allegation. 3. In an action against such person for an injury resulting from his unskillful treatment, proof that he accepted the employment will sustain an averment that he was employed "at his special instance and request." Musser's Exrs. vs. Chase.



Reserving all minerals underlying soil" construed.-The words " reserving all the minerals underlying the soil," in the granting clause of a deed for the conveyance of real estate, constitute, prima facie, an exception of the minerals from the operation of the grant. Sloan et al. vs. Lawrence Furnace Co.


Conveyance of land by judgment debtor; levy of execution; evidence.—1. Where an execution is levied on land which has been conveyed by the judgment-debtor, with intent to defraud his creditors, the judgment-creditor may maintain an action to set aside the fraudulent conveyance in order to effect a better sale of the property. 2. Whether the debtor, on the making of the conveyance, retained sufficient property to satisfy his creditors, is a proper subject of inquiry in determining the character of the conveyance. But, if the conveyance is found to be fraudulent as to creditors, neither the debtor nor his fraudulent grantee can require the creditor to abandon his levy, on the ground that the debtor has other property which might have been taken by the creditor; nor is it necessary that the petition should aver that the debtor had not such other property. Gormley et al. vs. Potter et al.


Between estate of deceased debtor and creditors.-As between the estate of a deceased debtor and the creditors thereof, the statute of limitations does not run against their claims, after they have been presented to, and allowed by, the executor or administrator. Taylor et al. vs. Thorn, admr.


Under Ohio statute; civil action; evidence; admissions.-1. The statute against seduction (S. & C. 452) extends its protection to all females under the age of eighteen years who are of good repute for chastity," and therefore, on the trial of an indictment under the statute, it is not competent for the defendant to prove specific acts of illicit carnal intercourse by the prosecutrix with other persons, and he must attack her character, if at all, by proof of her reputation. 2. It is competent for the defendant in such cases to give in evidence previous acts of carnal intercourse by the prosecutrix with himself, not for the purpose, however, of impeaching her character for chastity, but for the purpose of showing that the criminal act charged was not committed under a promise of marriage. 3. On such trial the prosecutrix is not to be regarded as a party, but has all the rights of an involuntary witness, and therefore the defendant can not, without her consent, prove by an attorney admissions made by her to such attorney in confidential consultation concerning a civil action pending between her and the defendant. 4. The admissions so made are not deprived of their privileged character by the fact that her mother was present, and participated in the consultation; the presence and aid of the mother being necessary and proper in such a case, she should be regarded as the mere agent of the daughter. Bowers vs. Slate.- Washington Law Rep.

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