(81 South. 810)

#### WOODWARD IRON CO. v. GAMBLE.

(6 Div. 890.)

Supreme Court of Alabama.

May 1, 1919.

Master and Servant &wkey;?139 — Injuries to Servant — Negligence oe Master — Proximate Cause.

Where as directed by his superior to whose order he was bound to conform (Code 1907, § 3910, subd. 3) an electrician’s helper in a mine alighted from a moving coal car, and while walking beside it was thrown beneath the car by the body of his superior, who attempted to alight, but was carried along with the car because a bolt caught in his clothing, the order to alight was not the proximate cause of the injury.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by John Gamble against the Woodward Iron Company, for damages for injuries received while in its employ. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911.

Reversed and remanded.

The second count is as follows:

Plaintiff claims of the defendant damages for that heretofore defendant operated a mine in Jefferson county, Ala., and that in connection therewith in said mine operated said cars on a railway propelled by an electric motor, and on said day, while plaintiff was in employ of the defendant in and about said mines as an electrician’s helper in and about the duties of his employment, he took passage or rode upon a car so propelled, and plaintiff says that as he was in the act of alighting from said car, or immediately after he had alighted therefrom, he was thrown or caused to fall, and his foot was caught beneath said car, and said car ran over plaintiff’s foot. (Here follows catalogue of injuries.) Plaintiff avers that he suffered said injury and damage by reason and as a proximate consequence of the negligence of some person in the service or employment of the defendant, who had superintendence intrusted to him, to wit, John Green, whilst in the exercise of such superintendence, in that said superintendent negligently caused or allowed plaintiff to so fall or be thrown.

The following is count 4:

Plaintiff claims of the defendant the sum of five thousand ($5,'000.00) dollars as damages, for that heretofore, on, to wit, the 19th day of July, 1917, the defendant operated a mine in Jefferson county, Alabama, and in connection therewith in said mine operated cars on a railway propelled by an electric motor, and on, to wit, said day, while the plaintiff was in the employment of the defendant in and about said mine as an electrician’s helper, in and about the duties of his employment, lie took passage or rode upon said car so propelled, and plaintiff says that, as he was in the act of alighting therefrom, he was thrown or caused to fall, and his foot was caught beneath the said car, and the said car ran over plaintiff’s foot, and as a proximate consequence thereof plaintiff’s foot was badly mashed, the bones broken, he was bruised about the body and made sore and sick, and caused to suffer great physical and mental pain and anguish, was rendered unable to work and earn money, he was permanently injured and rendered permanently less able to work and earn money, and plaintiff was put to great expense for medicines, medical care, and attention in and about his efforts to cure his said wounds and injuries.

Plaintiff avers that he suffered said injuries and damage by reason and as a proximate consequence of the negligence of some peyson in the service of the defendant; to wit, John Green, to whose orders or directions the plaintiff, at the time of his injury was bound to conform and did conform, said injuries having resulted from him so conforming, in that said John Green negligently ordered the plaintiff to throw off the tools at said place, and plaintiff conformed to said order, which said injuries resulted from his so conforming.

V. J. Nesbit, of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

SAYRE, J.

The report of this appeal will show count 4 of plaintiff’s (appellee’s) complaint.

Plaintiff was an electrician’s helper in defendant’s mine. John Green, plaintiff, and another, were going on an electrically drawn empty coal car, an ordinary coal car, to repair the trolley wire at a point indicated as entry 44 East. At that point an electric light illuminated the surroundings. About 50 yards before the car reached the light John Green, alleged to be a person in the employment of defendant to whose order plaintiff was bound to conform (Code, § 3910, subd. 3), said:. “Throw off your tools where the light is ; that is where we get off.” This was the order on which plaintiff counted. At the point designated plaintiff threw off his bag of tools, and himself safely alighted from the car, and was walking along by the side of it. At that time the car was moving about as fast as a man could walk, and thereafter came to a stop in about a car length. In the meantime, however, John Green attempted to alight from the car; but an iron bolt, projecting about an inch above the surface of the car, caught in his clothing, so that he was unable to alight immediately and was carried along until his body came into contact with plaintiff, knocking him down, whereby one of his feet was caught beneath .a wheel of the car and injured.

If it be conceded that questions whether the order to alight from the car may have been properly accepted as an order to alight while yet the car was in motion, whether plaintiff was bound to conform to the orders *21of John Green, and whether in general the order was negligently given raised issues necessary to be submitted to the jury, we are of opinion that it cannot be said that plaintiff’s injury resulted in a. legal sense proximately from the order. The order, as far as it went, was safely executed; but the event disclosed the fact that, upon the concessions stated above, it placed plaintiff in a situation where he was injured as the result of a most extraordinary sequence of events. In order to fix defendant’s liability it must appear — the evidence must afford reasonable warrant for a finding — that, as in broad terms the rule is generally stated, plaintiff’s injury flowed in natural and continuous sequence from the negligence charged. Mr. Street, in his work on the Foundations of Legal Liability, affirms that the question whether damage claimed is proximate or remote, recoverable or nonrecoverable, “is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent. * * * The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other.” Vol. 1, p. 110. However, as noted in Briggs v. B. R., L. & P. Co., 188 Ala. 262, 66 South. 95, this court, following substantially the text of 1 Shearman & Bedfield on Negligence (6th Ed.) § 29, where the rule is stated as the necessary result of the latest and best decisions, has adopted the following formula of practical utility:

> “A person guilty of negligence is responsible for all consequences which prudent and experienced men, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind.” Armstrong v. Montgomery Ry. Co., 123 Ala. 233, 26 South. 349.

The connection between the negligence charged and the injury suffered may be broken by an intervening cause, and such connection is to be considered as broken if the intervening event is one which, in the natural and ordinary course of things, may not be reasonably anticipated. 1 Shear. & Bedf. § 32. These attempts at definition may appear to define the proximity of a result by reference to the elements of the negligence from which the result is alleged to have flowed; but that seems unavoidable in any definition capable of practical use in trial courts; and in so philosophical a work as Pollock on Torts we find the author discussing the question of proximate or remote cause and making useful reference to Blyth v. Birmingham Waterworks Co., 11 Ex. 781, though himself noting the fact that the question there was not really one of remoteness of damage, but whether there was any evidence of negligence at all. Pollock on Torts, 42. The case to which he thus refers was quoted in Southern Railway Co. v. Carter, 164 Ala. 103, 51 South. 147, to this effect, in part:

> “If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all.”

The same case was twice cited in Matson v. Maupin, 75 Ala. 312. Our conclusion, on what appears to be the common sense of the issue raised in the present case, is that the proximate or effective legal cause of what happened to plaintiff, after he had executed the alleged order of Green, is to be found in what happened to Green, an extraneous accident whereby he was made an involuntary agent in the infliction of an injury of a kind he had no reason to foresee; and that, therefore, there was shown no proximate causal connection between Green’s order and plaintiff’s injury, and defendant was entitled to the general charge on the fourth count, as requested.

Reversed and remanded.

ANDERSON, O. J., and McCLELLAN and GARDNER, JJ., concur.