of the injury? What test can be applied to the varying standard of human conduct and natural consequences that will correctly solve this problem in all the cases where it arisés? Is there any fixed and unbending rule that in every case will clearly distinguish proximate and remote causes, and discriminate between active, efficient causes, and apparent causes that are really merely conditions and not causes of following injuries? No ultimate test of such character has yet been formulated. It is by analysis and synthesis rather than by definition that the distinction between proximate and remote causes must be made.1 Negligence, as we have seen,2 may be actionable or not actionable. That is, it may proximately inflict an injury, or it may result harmlessly, or be but the remote cause or mere condition of an injury, of which some intervening act or negligence is the efficient and proximate cause.3 It follows that, to constitute actionable negligence, there must be not only a causal connection between the negligence complained of and the injury suffered; but the connection must be by a natural and unbroken sequencewithout intervening efficient causes-so that but for the negli gence of the defendant the injury would not have occurred; it must not only be a cause, but it must be the proximate; that is, the direct and immediate efficient cause of the injury.

Berkley, Strobn. L. (S. Car.) 525; s. c., 47 Am. Dec. 578.

1. The strong tendency therefore is always, in recognition of this perplexing state, to submit the question of proximate cause, wherever there is any doubt, to the jury to be decided as a matter of fact; but a test by which they are to be guided and governed is to be given to them by the court. That test will be presented further on. See Milwaukee etc. R. Co. v. Kellogg, 94 U. S. 469, 474; Haverly v. State Line etc. R. Co., 26 W. N. Č. (Pa.) 321; Cosulich v. Standard Oil Co., 55 N. Y. Super. Ct. 385; Wright v. Chicago etc. R. Co., 27 Ill. App. 200; Kreuziger v. Chicago etc. R. Co., 73 Wis. 158; McCabe v. Manhattan R. Co., 6 N. Y. Supp. 418; Sweeney v. New York Steam. Co., 6 N. Y. Supp. 528; Nelson v. Chicago etc. R. Co., 73 Iowa 576; Pierce on Railroads 441.

The question as to whether defendant's want of care was the proximate cause of the injury is of course not always a matter of doubt; therefore, where the facts are undisputed, it is generally a question for the court. Pierce on Railroads 441; Township of West Mahoney v. Watson, 116 Pa. St. 344; post, subtit. XVI, QUESTIONS LAW AND FACT.

OF

There

2. Ante, subtit. II, ANALYTICAL DESCRIPTION; Shear. & Red. on Neg., §§ 3, 4; Broom's Com. (5th ed.) 368.

3. Shear. & Red. on Neg., §4; Broom's Com. (5th ed.) 368.

In this latter authority it is stated that "it may be laid down as a true proposition that although bare negligence, unproductive of damage to another, will not give a right of action, negligence causing damage will do so." See also Bishop on Non-Contract Law, §§ 41, 42; McClary v. Sioux City etc. R. Co., 3 Neb. 44 (defendant's train was behind time and was destroyed by a storm so that plaintiff was injured. Held, that defendant

was

not liable, since the proximate cause of the injury was the storm, his lateness being a mere condition). Similar cases are found in Memphis etc. R. Co. v. Reeves, 10 Wall. (U. S.) 176; Morrison v. Davis, 20 Pa. St. 171; Denny v. New York etc. R. Co., 13 Gray (Mass.) 481; s. c., 74 Am. Dec. 645; Dubuque Wood etc. Assoc. v. Dubuque, 30 Iowa 176; Bodkin v. Western Union Tel. Co., 31 Fed. Rep. 134.

4. The definition of a proximate cause as given by Shearman and Redfield (Neg., § 26) 18 applicable here. "A proximate cause of any event must be understood to be that which in a natural and continuous sequence unbroken

are but three classes of cases in which negligence is the proximate cause of an injury, viz: First. When the injury is such a direct and immediate consequence of the negligence as, under the surrounding circumstances of the case, a person of ordinary care and prudence might and ought to have foreseen as likely to follow from the negligence.1 Second. When the injury, although it could not have been foreseen in form, as a likely and probable consequence, is a natural one, flowing directly and immediately in unbroken sequence, from the negligence, without any possible intervening and probably efficient cause to which it might have been due in whole or in part.2 But, if in a case that would otherwise

by any new cause, produces that event, and without which that event would not have occurred." Wharton on Neg., § 3; Oil Creek etc. R. Co. v. Keighorn, 74 Pa. St. 320; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. (U. S.) 52.

See also, as supporting the general proposition of the text (leading cases only are cited), Rockford v. Tripp, 83 Ill. 247; s. C., 25 Am. Rep. 381; Patch v. Covington, 17 B. Mon. (Ky.) 722; s. c., 66 Am. Dec. 186; Tutein v. Hurley, 98 Mass. 211; s. c., 93 Am. Dec. 154; Worcester v. Great Falls Mfg. Co., 41 Me. 159; s. c., 66 Am. Dec. 217; Fairbanks v. Kerr, 70 Pa. St. 86; s. c., 10 Am. Rep. 664; Etna Ins. Co. v. Boon, 95 U. S. 130; Louisville etc. R. Co. v. Guthrie, 10 Lea (Tenn.) 432;. Am. & Eng. R. Cas. 478; Donnell v. Jones, 17 Ala. 689; s. c., 52 Am. Dec. 194; Harlan v. St. Louis etc. R. Co., 65 Mo. 22; Shear. & Red, on Neg., § 26; Cooley on Torts 69; Phillips v. Dickerson, 85 Ill. 11; s. c., 28 Am. Rep. 609; Mayne on Damages 15.

II

Therefore, where it appears on the face of the complaint that the negligence charged was not the proximate cause of the injury, a demurrer to the complaint will not be sustained. Kistner v. Indianapolis, 100 Ind. 210; Scheffer v. Washington City etc. R. Co., 105 U. S. 249; 8 Am, & Eng. R. Cas. 59.

non.

"In order to make a defendant liable, his negligence must be the causa causans and not merely a causa sine qua KELLY, C. B., in Lord Bailiffs etc. v. Trinity House, 39 L. J. Exch. 163. See also Saunders on Neg. 7, § 2. "Proximate."-The use of the word "proximate" has been objected to as failing to convey the proper meaning intended. But even those so objecting recognize the necessity of its use since it has become so completely identified with negligence by its use in all treatises and cases, and indeed the ob

jection seems entirely unfounded. Ehrgott v. Mayor etc. of N. Y., 96 N. Y. 264, 281; Shear. & Red. on Neg., § 26.

1. Hoag v. Lake Shore etc. R. Co., 85 Pa. St. 293, 298: s. c., 27 Am. Rep. 653; Am. R. Rep. 405; Milwaukee etc. R. Co. v. Kellogg, 94 U. S. 469, 475; Scheffer v. Washington City etc. R. Co., 105 U. S. 249, 252; 8 Am. & Eng. R. Cas. 59; Sharp v. Powell, L. R., 7 C. P. 253; Phillips v. Dickerson, 85 Ill. 11; s. c., 28 Am. Rep. 609; Pollock on Torts 36, 37; Greenland v. Chaplin, 5 Exch. 248; Shear. & Red. on Neg., § 739; 2 Thomp. on Neg., 10845,2; Cooley on Torts 72, et seq.; Smith v. London etc. R. Co., L. R., 5 C. P. 98; Exch., L. R., 6 C. P. 14.

Thus, when horses are frightened in a street, it may be foreseen that they may run away, and that such running away may, and probably will, cause injury; therefore, if a party by a negligent act frightens such horses, and causes them to run away, he becomes liable for the injury that may result, since it is but the natural and probable consequence of his wrong doing. Billman 7. Indianapolis R. Co., 76 Ind. 166.

2. Terre Haute etc. R. Co. v. Buck, 96 Ind. 346; 18 Am. & Eng. R. Cas. 234; Marble v. Worcester, 4 Gray (Mass.) 397, 405; Smith v. London etc. R. Co., L. R., 6 C. P. 14; Cooley on Torts [69-71]; Baltimore etc. R. Co. v. Kemp, 61 Md. 74; 18 Am. & Eng. R. Cas. 220 (leading case); Heirn v. McCaughan, 32 Miss. 17; Williams v. Vanderbilt, 28 N. Y. 217; Cincinnati etc. R. Co. v. Eaton, 94 Ind. 474; 18 Am. & Eng. R. Cas. 254.

In the leading case (Baltimore etc. R. Co. v. Kemp, supra) Mrs. K was injured slightly by the negligence of the railroad company. Shortly after, a cancer developed in the spot where she had been injured, and in a few months became serious. Operations were per

come within the last rule, there can be found an independent effi cient, probable cause, the law will ascribe the injury to this prob able cause rather than to the negligence which was not its likely and probable cause, but only to be held so in the absence of any other.1 Third. When the negligent person knew. or had means of knowing, that consequences not usually resulting from the negligence of which he was guilty would be likely to flow from and be caused by such negligence by reason of some existing cause or condition that would increase and aggravate the effects of the negligence.2 This last rule is, after all, but an extension of the first one, because the possession by the negligent person of knowledge or means of knowledge that the unusual consequences are likely to ensue, makes them the direct and immediate results of his negligence-makes them proximate; that is, such as ought to have been foreseen in the light of the circumstances.3

433

The correct rule of law, then, is that in cases of negligence the law stops at the immediate cause and direct consequences of the injury, and it is only in cases where the injury was wilful or malum in se, that it goes back to the wilful act or omission, and presumes that all existing conditions were known by the wrongdoer, and all consequences, however improbable, foreseen and intended, and that he is liable for all. In a number of cases cited to the foregoing paragraph acts malum in se were done, and the courts spoke of them as grossly negligent acts, failing to make the accurate and profound distinction that has been clearly made in a number of recent cases between wilfulness and negligence.2 Where this error was made, the courts frequently held the guilty person responsible for all the consequences of his act, mediate and immediate, thus tracing the chain of causation backward to the original wrongful act; but in doing so they treated the wilful wrong as mere negligence, which they term "gross," and tried to show that such decisions conformed to the maxim, "Causa proxima, non remota spectatur." The application of this maxim to such cases is erroneous and injurious; for such decisions have been used as authorities to sustain a recovery in cases of mere negligent injury when the negligence was remote in the chain of causation and the consequences unusual and incapable of having been foreseen by the most prudent person. The true principle is that, where an act is malum in se or wilful, the person guilty of it is liable for all the consequences, however remote, because the act is quasi criminal in its character, and the law conclusively presumes that all the consequences were foreseen and intended. And in many cases the character of the act and the circumstances under which it was done raise a conclusive presumption that it was wilful.3

by his happening to be in possession of some material information beyond what he might be expected to have." Pollock on Torts, p. 356.

1. Carklin v. Thompson, 29 Barb. (N. Y.) 221; Loop v. Litchfield, 42 N. Y. 358 (druggist selling medicine wrong. ly labelled); Broom's Leg. Maxims (7th ed.) 267; Scheffer v. Washington City etc. R. Co., 105 U. S. 249; 8 Am. & Eng. R. Cas. 59; Pennsylvania Co. v. Whitlock, 99 Ind. 16; s. c., 50 Am. Rep. 71; Billman v. Indianapolis R. Co., 76 Ind. 178; s. c., 40 Am. Rep. 230; Forney v. Geldmacher, 75 Mo. 113, s. C., 42 Am. Rep. 388; Indiana etc. R. Co. v. Birney, 71 Ill. 391; Lewis v. Flint etc. R. Co., 54 Mich. 55; 18 Am. & Eng. R. Cas. 263-265; Kistner v. Indianapolis, 100 Ind. 220, 221, Henry v. St. Louis etc. R. Co., 76 Mo. 288; 12 Am. & Eng. R. Cas. 136; s. c., 43 Am. Rep. 762; Marble v. Worcester, 4 Gray (Mass.) 397, 405; Carter v. Louisville

etc. R. Co., 98 Ind. 555; 8 Am. & Eng. R. Cas. 347; 22 Am. & Eng. R. Cas. 360; s. c., 49 Am. Rep. 780; Sherman v. Stage Co., 24 Iowa 563; Reynolds v. Clark. 1 Ld. Raym. 1401; s. c., I Stra. 635; Weick v. Lauder, 75 Ill. 93; Holmes on Com. Law 92; Bigelow on Torts 312, 313; Terre Haute etc. R. Co. v. Graham, 95 Ind. 293; 12 Am. & Eng. R. Cas. 77.

2. Ante, subtit. III, 1, INADVERTENCE, etc.; Terre Haute etc. R. Co. v. Graham, 95 Ind. 298; 12 Am. & Eng. R. Cas. 77; s. c., 48 Am. Rep. 719; Pennsylvania Co. v. Smith, 98 Ind. 42; Ivens v. Cincinnati etc. R. Co., 103 Ind. 27; Louisville etc. R. Co. v. Schmidt, 106 Ind. 73; Louisville etc. R. Co. v. Bryan, 107 Ind. 51.

3. Bigelow on Torts 313; Reg. v. Hicklin, L. R., 3 Q. B. D. 360; 1 Bishop's Crim. Law (7th ed.), §§ 244, 314, 345, 328, 334, 335, 343; 2 Id., §§ 637, 639, 693; 2 Bish. Cr. Procedure (2nd ed.), §

Cases where acts or omissions, wilful or malum in se, have been treated as negligent, and a mistaken attempt made to bring them within the maxim above quoted, are numerous. But other cases seem to recognize the principle that it was because the original act was malum in se that there was a liability for all the consequences, remote as well as proximate.2 And it is in such cases that negligence on the part of the plaintiff which is a proximate cause of injury is held not to bar his right of recovery. A cause of confusion in these doctrines just discussed is found in cases, of which there are a few in the books, where there was a long chain of apparent causes, only one of which, and that the first in order of time, was efficient and proximate, and where the original act or omission constituting such cause was also malum in se, or capable of being presumed in law to have been wilful.4 In still other cases, what seems a remote cause is held proximate, because on examining the chain of causation no other proximate cause

801; 2 Bish. Cr. Law, §§ 680, 681, 688, 922, 1279; Bish. on Non-Contract Law, §§ 16, 501.

"So far mischief was originally intended; not any particular mischief, but mischief indiscriminate and wanton. Whatever mischief, therefore, follows, he is the author of it; egreditur personam, as the phrase in criminal cases. And though criminal cases are no rules for civil ones, yet in trespass I think there is an analogy." DE GREY, J., in Scott v. Shepherd, 2 W. Bl. 892; 1 Sm. Lea. Cas. (7th ed.) 872.

1. Jefferson etc. R. Co. v. Riley, 39 Ind. 568; Drake v. Kiely, 93 Pa. St. 495; Indianapolis etc. R. Co. v. McBrown, 46 Ind. 232, 233; Clark v. Chambers, 7 Cent. L. J. 11. It is unnecessary to cite all the cases of this character. The books are full of them, and many of them have already been referred to. 2. Bloom v. Franklin L. Ins. Co., 97 Ind. 478; s. c., 49 Am. Rep. 469; Billman v. Indianapolis etc. R. Co., 76 Ind. 166, 178; s. c., 40 Am. Rep. 230; Binford v. Johnson, 82 Ind. 426; s. c., 42 Am. Rep. 508; Forney v. Geldmacher, 75 Mo. 113; s. c., 42 Am. Rep. 388; Weick v. Lauder, 75 Ill. 93; Claxton v. Lexington etc. R. Co., 13 Bush (Ky.) 636.

3. Carter v. Louisville etc. R. Co., 98 Ind. 555; 8 Am. & Eng. R. Cas. 347; 22 Am. & Eng. R. Cas. 360; s. c., 49 Am. Rep. 780; Cook v. Central R. Co. etc., 67 Ala. 533.

4. Foremost among cases of this character is the famous "squib case." Scott v. Shepherd, 3 Wils. 403; 2 Wm. Bl. 892; Smith's L. Cas. (7th ed.) 755.

Others are Ricker v. Freeman, 50 N. H. 420; s. c., 9 Am. Rep. 267; Thomas v. Winchester (drug dealer case), 6 N. Y. 397, 405; Henry v. Dennis, 93 Ind. 452; s. c., 47 Am. Rep. 379; Hughes v. McDonough, 43 N. J. L. 459; s. c., 39 Am. Rep. 653.

The best illustration of the principle maintained in the text is that afforded by the case of Scheffer v. Washington City etc. R. Co., 105 U. S. 249; 8 Am. & Eng. R. Cas. 59 (suicide case), i. e., that if the original act had been wilful or malum in se, it would have been proper to hold defendant liable; and this very thing was done in the Riley case (Jeffersonville etc. R. Co. v. Riley, 39 Ind. 568), where a brakeman threw a burning brand from the train towards the spot where passengers were accustomed to get on and alight from the train, because the act of W, the brakeman, in throwing the burning stick, was of such a

character that it was conclusively presumed that all the consequences were foreseen and intended. Upon no other ground can the decision be sustained, although this reason may not have been the one given by the court.

The case of Forney v. Geldmacher, 75 Mo. 113; s. c., 42 Am. Rep. 388, is also a conspicuous example of this doctrine; defendant's original act having been wilful, he was held liable even for remote consequences. And in an Illinois case a similar state of facts was the basis of a decision similar to the Missouri case. Rockford v. Tripp, 83 Ill. 247; s. c., 25 Am. Rep. 381. So also in the old case of Durham v. Musselman, 2 Blackf. (Ind.) 96; s. c., 18 Am.