#### Crowley *v.*City of West End *et al.*

*Action for Damages for Personal Injury.*

(Decided March 2, 1907.

43 So. Rep. 359.).

*Municipal Corporations; Negligence; Personal Injury;; Proximate Cause; Complaint.*— A complaint is insitfficient which alleges that defendant negligently permitted a large- body of water to collect in a highway; that plaintiff’s horse fell in the water and that to save him plaintiff was compelled to' *614get- out into the water • to unhitch, the-, horse so as to enable him to get- up, and that while doing so. the horse' knocked plaintiff ■ down into the wajgrthat on arising plainpff, was compelled to remain .standing in the water to re-hitch the' horse, and as a...result thereof he caught a severe- cold, as guch complaint shows that the defendant’s negligence was not the proximate cause oi the injury, and that the injury resulted from a subsequent intervening cause.

Appeal "from Birmingham City Court. -

Heard before Hon. Charles Fúrguson.

Action by E. Lee Crowley against'the city of West End and others. Judgment' for defendants, and plaintiff appeals.

Affirmed.

The original complaint contained 'two counts, to which demurrers were interposed and sustained, whereupon'he filed an amended complaint "containihg counts' 3 and 4. It' will suffice' for' this ca'se to 'set out one of these counts, as they are all' very similar ': “Count 3. The plaintiff,' E. Lee Crowley, clairhs of'the defendant the sum of §1,500' dámagfes, for this: That- the' defendants heretofore, 'to-wit,' on and prior' to the’ 16th day' of ■ January, 1905, unlawfully and negligently created, caused, maintained, permitted, or suffered a public nuisance in Jefferson'county, Alabama, at the'town or city of West End, and in or on . and about what is known as Tuscaloosa avenue, at or near the junction of what is known and called as Walnut street with said avenue, in that the defendant negligently caused, suffered, created, or permitted a large pond of water to collect and stand or remain in, along, and across Tuscaloosa 'avenue, in that certain natural swag or low place of ground on. or in -and about Said avenue-at said place, which said water plaintiff avers from freeing caused an accumulation of ice to be in or upon said pond of water on said date, so that-, while the plaintiff was exercising due care' in traveling along ■ said' Tuscaloosa, avenue, on his way from the city of Birmnigham to his home in the town, of Brighton, in said county and state, in a vehicle or delivery wagon drawn.by a horse delivering goods, wares, and. merchandise to his customers living along said way, the horse, in passing *615along said avenue add wading through said pond, came in contact with the ite, or the ice and water, so that he fell in the icé and water in such a manner as that the plaintiff, in order to get the'horse up and save him, was’ compelled to- get - out into the ice and water and unhitch the horse so he could get up, and while he was doing so the horse, in his efforts to • arise, shoved or knocked the plaintiff down into the ice and water, and fell on or against him, so that he was covered with water, or ice and water, and that when he (plaintiff) got up onto his feet he was compelled to remain standing in said pond to rehitch the horse to the vehicle before he'could get out of the pond with- the vehicle and horse.” It is further averred that he was injured and suffered great inconvenience and other damages, had to shiver with cold, his left knee and right hip were greatly strained and made sore, that he had to borrow clothes from a negro because the weather was freezing;' that he ivas greatly humiliated by having to go into the presence of other people in that plight; that he took cold and had to stay indoors- several days; and that his business suffered accordingly. It is' also- alleged- that the avenue is a public street or roadway -for public travel, and the main thoroughfare at or about the place of the pond. It is furthér averred that he filed his-claim with the mayor and aldermen, asking for its allowance, and that it was refused. Demurrers were- in-, terposed:' “(1) Because there-was misjoinder of parties defendant. (2) Because each'count.shows that the-alleged injuries were not the proximate consequence of any conduct on the part of these defendants. (3) Because it shows affirmatively that the alleged "injuries' were the proximate consequence of the plaintiff’s own negligence,'and hot the result of anything'done‘by any one of these defendants, and because it 'is not- shown that the claim -was itemized or verified as' required by law, and because the true nature and character of the' claim is not set forth.” These demurrers were - sus-' tamed, and,' the plaintiff declining" to plead further, a judgment was rendered for defendants:

*616Estes, Jones & Welch, for appellant. —

A person lias the right to go< upon the street in the ordinary way using ordinary care either by day or night- with knowledge of the dangerous -condition of the street and if he acts-with reasonable precaution or prudence in doing so and was injured he is entitled- to recover.- — 15 Am. Neg. Rep. 24; *City of Muncy v. Hey,*18 Am. Neg. Rep. 53: An individual ■ creating a nuisance in the city as tvell as the city authorizing or permitting it is liable and may be-jointly held. — 14 Am. Neg. Rep. 112. The acts of plaintiff in attempting to save his horse did not constitute contributory negligence or am intervening subsequent *cause.*— Birmingham Ry-., *L. d P. Go. v. Hinton,*141 Ala. 606-; s. c: 40- South. 998; *Liming v. III. Gent.*Ry-. *Go.,. 4:5'*A. & E. R. R. Cases, 582; *Btickncy v. Town of. Maidstone,*30 Yt. 738. It was the duty of plaintiff to have attempted- to- save his horse in order to render the damages to defendant- as little as possible.— *G. P. R. R. Go, v.. Fullerton,*79-Ala-.. 302; 84 Ala. 183.

John IT. Miller, and C. I). Powell, for appellee.—

Unless the tort be the proximate cause of' the injury complained of there is no- legal *accountability.*— Mil*waukee R. R. Go. v. Kcllog,*94- U. S. 469; 16- A & E. Ency. of- Law, 436; 'Wharton’s Neg. § 75; Sherman & Redfield’s Neg-., § 739. The entire question, of proximate cause- and 'intervening, independent agencies- is thoroughly discussed in the following cases: W. *Ry. of Alaev. Mutch,*97 Ala. 194; *Decatur G. W. d M. Go. v. Maliaffaij,*128 Ala. 242; *Thompson v. L. d N. R. R>. Go.,*91 Ala. 500:

ANDERSON, J. —

To constitute actionable negligence, there must be not only causal connection between the negligence complained of and the injury -suffered, but the injury suffered must be by a natural and unbroken: sequence — without intervening efficient cause — • so that, but for the negligence 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.”*— West*617*ern R. R. v. Mutch,*97 Ala. 194, 11 South. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179; *M. & C. R. R. v. Christian Co.,*146 Ala. 404, 41 South. 17; *Decatur Car Co. v. Mahaffey,*128 Ala. 242, 29 South. 646; Cooley on Torts, § 69, Sherman & Red. on Neg. § 26; Wharton on Neg. 26. Each count of the complaint charges negligence to the defendant for permitting an accumulation of water in the road, while the injury sustained is averred to have been caused by the action of the horse while plaintiff tvas assisting him to get up,.and Avhich occurred after plaintiff had safely alighted from the wagon, and was the result of a subsequent independent act of the plaintiff. The cases relied upon by the plaintiff *(Birmingham R. R. v. Hinton,*reported in 141 Ala. 606, 37 South. 635, and again in 40 South. 988, and *Liming v. Ill. Cen. R. R.,*47 N. W. 66, 81 Iowa, 246), do not benefit his complaint. In each of said cases the injuries sustained were burns f-iom fires negligently started by defendants. Here the injury to the plaintiff was not the proximate cause of the defendant’s alleged negligence, but Avas the result of a subsequent intetwem'ug cause.

The trial court properly sustained the demurrers to the complaint, and the judgment is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.