Reid v. Evansville and Terre Haute Railroad Company. The delay in starting the train was negligence, but can it be said that the railroad company must, under these circumstances, answer in damages for the injury? If the company is not liable in the case supposed, it must be for the reason that the negligent delay in starting the train was not the proximate cause of the injury. It is not enough that such injury be one of the numerous links in the chain of consequences that may flow from the wrongful act. The result must be a natural one, and one that might have been reasonably anticipated. In the supposed case there is not only an intervening agency, proximate in point of time, but it is such an agency as was sufficient to break the causal connection between the original act of misfeasance and the injury. As we said in another case: "It is not every tortious. act that makes the perpetrator liable in damages if injury occurs, even if such injury is, in some sense, produced or influenced by it. If in any such case some other power or force, beyond the control of the original actor, may be justly said to constitute the more direct cause, and the result following the primary cause was extraordinary, unusual, or unnatural, and the consequences for which damages are claimed were not such as might have been reasonably anticipated, the first cause will be considered too remote to be taken in law as the proximate or efficient one." Davis v. Williams, 4 Ind. App. 487. Of course, we do not wish to be understood as deciding that the identical consequences must, in all cases, have been foreseen by the wrongdoer, in order to make him liable. If the consequence complained of followed in unbroken sequence, without an intervening efficient cause, even though the defendant could not have foreseen the particular result, he will be liable, if he could reasonably Reid v. Evansville and Terre Haute Railroad Company. have anticipated some injurious consequences. It is otherwise, however, where there is an intervening efficient cause, in itself sufficient to break the causal connection between the original wrong and the injury. On the subject of probable and remote cause, see Bishop-Non Cont. Law, sections 40-48, 454-457. In the case under consideration the facts found specially do not show that the injury occurred from any intervening cause that might have been reasonably anticipated or apprehended, any more than in the imaginary case of the injury to the passenger from the discharge of the gun. For aught that appears in the special verdict, the fire in the warehouse may have occurred from precisely such a cause as the one in the supposed case. Had it been shown that it originated either from sparks emitted by the appellee's locomotive, or from inflammable sources in the building, the case might be different, as such an occurrence might have been apprehended. When it was shown that an injury from fire was a casualty for which, the appellee, by its contract, was not liable, unless it occurred through the appellee's own negligence, the burden fell upon the appellant to show that the appellee's negligence caused the fire. The appellant having the burden of the issue upon this point, and there being no finding upon it, the presumption must attach that the fire originated from some cause other than the negligence of the appellee. The mere negligent omission of the appellee's duty in the transportation of the goods at an earlier period will not establish negligence in the origin of the fire. What is the natural sequence of an act of negligence, has been the source of serious differences among judges and text-writers. Upon the question as to whether a carrier is liable in damages who, by negligent delay, exposes goods in Reid v. Evansville and Terre Haute Railroad Company. transit to injury by the act of God or other cause for which he is not responsible, and which he could not naturally foresee, the courts of Pennsylvania, Massachusetts, Ohio, Iowa, Nebraska, and, perhaps, other State courts, as well as the Supreme Court of the United States, hold that in such cases no liability attaches, although the injury would not have occurred but for the delay; while in the courts of New York, New Hampshire and Missouri the opposite doctrine is maintained. See Shear. and Redf. on Negl., section 40, and cases cited. The precise question here in dispute does not appear to have been decided by our Supreme Court. The principle upon which we base our conclusion, however, has been repeatedly recognized by that tribunal, and nothing of a contrary nature has been declared. Thus, in Alexander v. Town of New Castle, 115 Ind. 51, it was held that the municipality was not liable in damages for negligently leaving open a pit in a street into which one in charge of a prisoner was thrown by the latter, in an attempt to escape, and from which an injury was sustained, such negligence not being the proximate cause of the injury. In Kistner, Exx., v. City of Indianapolis, 100 Ind. 210, the action was for negligence on the part of the Union Railway Company in failing to provide and maintain suitable protection and safeguards at the point of crossing where the injury occurred, the deceased having been struck by a wagon endeavoring to avoid a moving train. It was held that the proximate cause of the decedent's death was the act of the driver of the wagon, and that the negligence of the Union Railway Company was not the proximate cause of such death. See, also, Spencer v. Ohio, etc., R. W. Co., 130 Ind. 181; Pennsylvania Co. v. Reid v. Evansville and Terre Haute Railroad Company. Congdon, 134 Ind. 226, and the cases cited in Davis v. Williams, supra. We are referred, by the appellant's learned counsel, to the case of Toledo, etc., R. R. Co. v. Tapp, supra, as declaring a doctrine at variance with that here followed. But there is no analogy between the cases upon the question here involved. The case cited was an action for damages for the breach of the carrier's common law duty in failing to forward and deliver the baggage of the plaintiff, who was a passenger. By reason of the refusal to deliver the baggage after it had arrived, it was destroyed by fire with the warehouse or depot in which it had been locked up against the protest of the passenger. There the action was not upon the contract of shipment. Had the carrier shown that the fire originated from the act of God or some other excusable cause, it would not have been liable. Its failure to establish this, or any other fact proving freedom from negligence, was held to justify the court in rendering judgment upon the special verdict of the jury, and properly so, we think; while in the case at bar the plaintiff's failure to establish that the fire resulted from the negligence of the carrier must be held to authorize the court to render judgment in favor of the appellee. We think the proper statement of the rule that should govern in such cases as this, and certainly as favorable as it could be made upon the appellant's case, is that if injury resulted from the negligent act or omission of the defendant, such act or omission will be deemed the proximate cause, unless the consequences were so unnatural and unusual that they could not, by the highest practical care, have been foreseen, and consequently provided against. Louisville, etc., R. W. Co. v. Lucas, 119 Ind. 583. Under the rule thus stated, the facts found fail to make Aultman & Co. v. Forgey et al. a case for the appellant. If the real cause of his loss, viz, the fire, was the result of negligence, he should pursue the remedy the law gives him against the culpable party. If the fire sprang from an innocent cause, and he has no remedy, the appellee should not, on this account, be made to suffer. While the rule may work a hardship in a partieular case, this would be no justification for bending or relaxing it, and thus entailing greater hardships in other cases. The court committed no error in rendering judgment upon the verdict in favor of the appellee. Judgment affirmed. Filed Dec. 15, 1893; petition for a rehearing overruled June 22, 1894. No. 1,017. AULTMAN & Co. v. FORGEY ET AL. REPLEVIN.-Chattel Mortgages.-Sale, Warranty.-Separate Defenses of Several Defendants.-Inure to Benefit of All.-Where in an action of replevin against several defendants the plaintiff introduces chattel mortgages executed by the defendants, but no one of them joint as to all the defendants, and no one of them covering all the property, the separate defenses made by the different defendants for breaches of warranty made upon the sale of the goods inure to the benefit of all. SAME.-Breach of Warranty Matter of Defense.-May Prove Under General Denial.-In such case, the breach of warranty constitutes matter of defense, and is available, under the general denial, without an affirmative plea. From the Howard Circuit Court. M. Bell, W. C. Purdum and F. W. Babcock, for appellant. D. A. Woods, S. A. Culver, J. C. Blacklidge, C. C. Shirley and B. C. Moon, for appellees. |