[No. 5057.]

[No. 2623 C. A.]

#### Snyder v. The Colorado Springs and Cripple Creek District Railway Company.

1. Railroads — Passengers—Damages—Personal Injuries — Negligence — Approximate Cause.

Plaintiff on a crowded ear stood with his hand resting on the door jam. There were people between him and the door and others upon the steps. The head of the man upon the lower 'step reached to the thigh'of the plaintiff. Tl e conductor, in pushing his way through the crowd, pressed the plaintiff against a third person sitting in the seat, who gave plaintiff a push, throwing him over the head of the man who stood upon the lower step. Held, that the approximate cause of the injury was, as a matter of law, the action of a third person, for which the railroad company was not liable. — P. 289.

2. Same — Damages—Personal Injuries — Evidence — Directing Verdict.

In an action for personal injuries, where from all the evi- ' dence the court is able to see that the negligence complained of was not the approximate but the remote cause of the injuries, the court must direct a verdict for the defendant, for if such evidence had been submitted to the jury and the verdict had been rendered in favor of the plaintiff, it would have been the duty of the court to set it aside. — P. 292.

*Error to the District Court of Teller County.*

*Hon. William P.*Seeds, *Judge.*

Action by William W. Snyder against the Colorado Springs and Cripple Creek District Railway Company.. Prom a judgment in favor of defendant, plaintiff brings error.

Affirmed,

Mr. J. J. McFeely, for plaintiff in error.

*289Mr. E. E. Whitted, Mr. P. H. Holme, and Messrs. Lunt, Brooks & Wilcox, for defendant in error. ■

Mr. Justice Bailey

delivered the opinion of the court:

This.is an action by plaintiff against defendant to recover for injuries received by plaintiff while traveling on defendant’s ears as a regular passenger, going from the city of Cripple Creek to a station known as Midway.

At the close of plaintiff’s testimony, the court, upon motion of defendant, instructed the jury to.return a verdict in favor of. the defendant, which was done.

• The ease comes here upon error, and the error assigned is this instruction and verdict.

There is no dispute as to the facts, which appear to be that, on the night of December 20, 1900, plain- • tiff was a passenger on defendant’s car, going from Cripple Creek to Midway. He had paid his fare, the car 'was crowded, and, after leaving Fairview, plaintiff was standing near the door, with his hand resting on the door jamb. There were people between plaintiff and the'door, some upon the steps. The head of the man upon the lower step reached to about the thigh of the plaintiff. The conductor, in pushing his way through the crowd, pressed plaintiff against a party who was sitting in a s.eat on the side of the car. This man became angry, said that he was “Getting’ tired, of playing cushion for the electric line, ’ ’ and raised up against the plaintiff and gave a “surge,” by the force of which plaintiff was thrown from the car, passing over the head of the man who stood upon the lower step.

In plaintiff’s brief it is said, in 'effect, that the court below, in passing on the motion for honsuit, *290dwelt at considerable length upon the question as to what was the proximate cause of this accident.. The court came to the conclusion that the proximate cause was the action of the passenger, and, therefore, the company was not liable.

So the question for us to determine is as to what was the proximate cause .of the accident.

Proximate cause is: “That cause which, in natural and continued sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have *occurred.”-D.*& *R. G. R. R. Co. v. Sipes,*26 Colo. 17.

It was defined by the court of appeals as being “that cause which immediately precedes and directly produces an effect as distinguished from a remote, mediate or predisposing *cause”’*-Burlington, *etc., R. R. Co. v. Budin,*6 Colo. App. 275.

“An act is the proximate cause of an event when, in the natural order of things, and under the particular circumstances surrounding it, such an act would necessarily produce that *event.”*— Ibid.

“The law will not look back from the injurious consequence beyond the last sufficient cause, and especially that, where an intelligent and responsible human being has intervened between the original cause and the resulting *damage.”*-Stone *v. Boston & A. R. Co.,*51 N. E. 1.

‘ ‘ The nature of the intervening cause which will render an original cause for which the author is sought to be held liable in damages too remote for recovery, must be simply such as interrupts the usual and ordinary and experienced sequence of events, and produces consequences at variance therewith.” —Watson on Damages for Personal Injuries, § 7.

“If the original wrong only becomes injurious in con'sequence of the intervention of some distinct *291wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote. ’ ’ — Cooley on Torts, 70.

‘£ The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of á third person, intervening or contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrong-doer, if such act ought to have been foreseen. ’ ’*—Lane v. Atlantic Works,*111 Mass. 136.

“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. ”—*S*tone *v. Boston & A. R. Co., supra; Burlington, etc., R. R. Co. v. Budin, supra*.

Tried by these tests, the defendant is not responsible for the consequences of the passenger’s act. There is nothing to show that such a consequence as happened was liable to occur. It was, of course, possible, that some extremely nervous or irritable person would become angry because of his being inconvenienced on account of the crowded condition of the car, but it is not in accordance with the usual and ordinary course of events to anticipate that a seated passenger would so far lose control of himself on account of having a standing passenger crowded against him that he would eject the standing passenger from the car with such force as to throw him over the head of one who was standing upon the step below the party so ejected.

*292It is apparent from the record in this case, that the proximate cause of the injury to plaintiff was the • action of the irritated passenger, and that this cause could not be anticipated by defendant or. its agents. The plaintiff, however, contends that this question should have been submitted to the jury. This course would have been necessary if material facts had been in dispute, but where, upon all the evidence, the court is able to see that the resulting injury was not proximate but remote, the plaintiff fails to make out his case, and the court should so *rule.*—Stone *v. Boston & A. R. Co., supra.*

If the matter had been submitted to the jury and the verdict had been rendered_ *in*favor of plaintiff, it would have been the duty of the court to set it aside. Consequently, it was his duty to direct the *verdict.*—Chivington *v. Colo. Springs Co.,*9 Colo. 597.

•The court having committed no error in sustaining the motion and directing the verdict, the judgment of the district court will be affirmed.

*Affirmed.*

Chibe Justice Gabbert and Mr. Justice Goddard concur.