and 118 New York State Reporter

might get up, to push the car back and away from him, and that it was after this was done that, the horse's feet being free, he kicked violently before rising, and in so kicking reached the plaintiff, who was on the front platform of the car, and, by striking his leg, inflicted the injuries of which complaint is made. Narrowed down, therefore, the legal question is whether or not the negligent operation of the car and management of the horses prior to the fall of the horse was the proximate cause of the plaintiff's injuries.

There are many cases in which this question of proximate cause has been considered, only a few of which will be noticed. Lowery v. Manhattan Ry. Co.,.99 N. Y. 158, 1 N. E. 608, 52 Am. Rep. 12; Kerrigan v. Hart, 40 Hun, 389; Storey v. Mayor, 29 App. Div. 316, 51 N. Y. Supp. 580; Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216; Lewis v. Flint R. R., 54 Mich. 55, 19 N. W. 744, 52 Am. Rep. 790. In the Lowery Case, supra, fire fell from the locomotive on defendant's road upon a horse attached to a wagon in the street below and upon the hand of the driver. The horse became frightened and ran away, and the driver attempted to drive him against the curbstone to arrest his progress. The wagon passed over the curbstone, threw the driver out, and the plaintiff, who was on the sidewalk, was run over and injured. It was therein said:

"It is difficult to disconnect the final injury from the primary cause, and say that the damages accruing are not the natural and necessary result of the original wrongful act. The defendant was chargeable with an unlawful act, which inflicted an injury upon the driver and horse in the first instance, and ultimately caused the injury sustained by the plaintiff. The injury originally inflicted was in the nature of a trespass, and the result which fol lowed was the natural consequence of the act. So long as the injury was chargeable to the original wrongful act of the defendant, it is not apparent, in view of the facts, how it can avoid responsibility. There was no such intervening human agency as would authorize the conclusion that it was the cause of the accident, and therefore it cannot be said that the damages were too remote."

This is the case principally relied upon by the plaintiff, but we think in the part of the opinion from which we have quoted that the distinction between the two cases is clear. After the negligent act in permitting the coal to fall on the horse, and before the injuries inflicted upon the plaintiff, there was no intervening agency. In the case at bar, however, we have the fact appearing that the natural and probable consequence of the driver's negligence ended with the fall of the horse and the stopping of the car, up to which time the plaintiff was uninjured; and it was only because of another independent and subsequent cause, which was neither the probable, natural, nor necessary consequence of the fall-namely the kicking of the horse while the car was being pushed back and away from him so that he might rise— that the plaintiff was injured. This court had occasion to examine. the subject of proximate cause in the case of Storey v. Mayor, supra, and as therein said:

"The rule, 'Causa proxima, non remota, spectatur,' is one difficult of application. In Parsons on Contracts (vol. 3 [7th Ed.] *p. 179) it is said: 'Every defendant shall be held liable for all of those consequences which might have been foreseen and expedited as the result of his contract, but not for those which he could not have foreseen, and was therefore under no moral obligation

to take into his consideration.' The test given by that author is: 'Did the cause alleged produce its effect without another cause intervening, or was it made operative only through and by means of this intervening cause?' As said again in Bouvier's Law Dictionary (Rawle's Revision, vol. 1, p. 293): 'It is not merely distance of place or of causation that renders a cause remote. The cause nearest in the order of causation without any efficient concurring cause to produce the result may be considered the direct cause. Proximate cause, it may be generally stated, is such adequate and efficient cause as, in the natural order of events, and under the particular circumstances surrounding the case, would necessarily produce the event; and this, having been discovered, is to be deemed the true cause, unless some new cause not incidental to, but independent of, the first, shall be found to intervene between it and the first. A proximate cause must be the act or omission of a responsible human being, such as, in ordinary natural sequence, immediately results in the injury. Whart. Neg. § 73. It is a cause which, in natural sequence, undisturbed by any independent cause, produces the result complained of (160 Pa. 359 [28 Atl. 777, 40 Am. St. Rep. 724]); and the result must be the natural and probable consequence such as ought to have been foreseen as likely to flow from the act complained of. If two causes operate at the same time to produce a result which might be produced by either, they are concurrent causes, and in such case each is a proximate cause; but if the two are successive, and unrelated in their operation, one of them must be proximate and the other remote. 149 Pa. 222 [24 Atl. 207, 16 L. R. A. 106, 34 Am. St. Rep. 603].'"

In Shearman & Redfield on Negligence (5th Ed.) § 26, the rule is thus stated:

"The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new independent cause, produces that event, and without which that event would not have occurred."

And in Laidlaw v. Sage, supra, Judge Martin, delivering the opinion of the court, says (pages 99, 100, 158 N. Y., and page 688, 52 N. E.):

"As has been said in an anonymous article in the American Law Review: 'A proximate cause is one in which is involved the idea of necessity. It is one the connection between which and the effect is plain and intelligible. It is one which can be used as a term by which the proposition can be demonstrated; that is, one which can be reasoned from conclusively. A remote cause is one which is inconclusive in reasoning, because from it no certain conclusions can be legitimately drawn. In other words, a remote cause is a cause the connection between which and the effect is uncertain, vague, or indeterminate. It does not contain in itself the element of necessity between it and its effect. From the remote cause the effect does not necessarily flow. This idea of necessity-the necessary connection between the cause and the effect-is the prime distinction between a proximate cause and a remote cause. The proximate cause being given, the effect must follow. But, although the existence of the remote cause is necessary for the existence of the effect (for unless there has been a remote cause there can be no effect), still the existence of the remote cause does not necessarily imply the existence of the effect. The remote cause being given, the effect may or may not follow.' 4 Am. Law Review, 201, 205."

*

*

*

It is unnecessary to quote further from the authorities, nor can it be said that they are all to be reconciled; but we think the principle to be evolved from their consideration is that, although a situation may be produced by negligence, it is only for injuries which probably, naturally, or necessarily flow from such negligence, without the intervention of another and a distinct cause or agency, that the author of the negligence can be held liable; and this would exclude injuries resulting from another, subsequent, different, and independent cause. Apply

and 118 New York State Reporter

ing this rule, we think the contention of the appellant is sound that in the case at bar the kicking of the horse while the car was being pushed from him was not a necessary, natural, or probable consequence of his having fallen. Were this to be expected or likely to happen, the plaintiff, having knowledge of the situation, and the opportunity to reach a place of safety, would not have remained on the platform. We think the negligence alleged resulted and ended in causing the horse to fall and in stopping the car. It was an extraordinary occurrence that afterwards the horse should have kicked the plaintiff, who was standing upon the platform of the car. As said in Kerrigan v. Hart, supra:

"That such a thing is possible is proved by the happening of the accident, but that such a thing was probable or likely to occur is absurd."

And as said also in the Storey Case, supra, from which we have already quoted:

*

"We must be careful to avoid confusing two things which are separate and distinct, namely, that which causes the injury and that without which the injury could not have happened. * If, after the cause in question has been in operation, some independent force comes in and produces an injury, not its natural or probable effect, the author of the cause is not responsible."

We do not think it can be held upon the facts here appearing that the negligent operation and management of the car was the proximate cause of the plaintiff's injury. There is no claim made that in the effort to extricate the horse after he had fallen, or in handling him so as to permit him to get upon his feet, there was any negligence for which the defendant would be liable; but, as stated, the plaintiff's contention is merely that, the defendant having been negligent in getting the horse into his prostrate position on the ground, it was liable for all injuries subsequently inflicted by the horse.

As this contention, in our opinion, is not legally sound, we think it was the duty of the trial judge to grant the motion at the close of the case to dismiss the complaint, and that his refusal was error, for which this judgment and order must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

INGRAHAM and HATCH, JJ., concur. PATTERSON, J., concurs in result.

CONNELLY v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term. June 22, 1903.)

1. MUNICIPAL CORPORATIONS-POLICE OFFICERS-AUTHORITY TO DIRECT MOVEMENTS OF TEAMS AND VEHICLES IN STREETS.

Greater New York Charter, § 315 (Laws 1897, p. 113, c. 378), directing the members of the police force to "regulate the movement of teams and vehicles in streets," does not authorize a police officer to direct a street car motorman to use his car to push a coal truck blocking street car traffic, and thus render the street car company liable for injuries sustained by the officer because of the motorman's negligence in operating the car while pushing the coal truck.

Appeal from City Court of New York.

Action by James A. Connelly against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Henry A. Robinson, F. A. Gaynor, and Bayard H. Ames, for appellant.

John C. Robinson, for respondent.

MacLEAN, J. The plaintiff assumed direction of the defendant's servant and control of its machinery, which latter, not being adapted to his wants, he supplemented with an improvised appliance. He was hurt, as he claims, through the negligent disobedience by the servant of the orders given him, and has recovered a judgment.

For this the defendant was not liable, nor could he be made so either by statute or by judicial legislation. The versions of the accident, as testified to by the witnesses for the plaintiff and the defendant, are not very dissimilar. That most favorable to the plaintiff was given by himself. He was a police constable, and on the morning of the 4th day of December, 1901, he noticed on his post on Third avenue that the cars were not moving, and going up there found a big coal truck in such a position as to block both the north and south bound tracks. He ordered the driver to get out of the way, but the street being slippery, and the grade upward, the beasts could not budge their load. Then the plaintiff placed a beam about five feet long against the rear of the coal truck, and told the motorman very distinctly to come up slowly until the bumper of the car touched the rear end of the beam. Then the policeman was to get out, and the motorman was to push, and try and start the wagon. He heard the car start suddenly, looked up, and the car was coming full speed. It hit the end of the beam first, and smashed it all to pieces, and jammed the officer up against the end of the car, which was still pushing, with power on. He had to walk four or five steps before the motorman would turn off the power; so that he was forced, between the car and the truck, to walk as best he could about three or four steps-was, in fact, carried that far before the power was shut off. It was the plaintiff's duty, he said, to move the truck off the tracks, and it was his suggestion to do it in that way. He

84 N.Y.S.-20

and 118 New York State Reporter

put the heavy piece of wood against the back of the truck, and told the motorman to come on, and to stop the car when he hit the end of the bumper, which he did not do. The only thing he did not do as the plaintiff told him to do was that he started his car quicker than he was told to, and he did not stop it when it touched the end of the beam.

*

The plaintiff claimed to act as in duty bound under section 315 of the Greater New York Charter (Laws 1897, p. 113, c. 378), providing, in language used in statutes for nearly 40 years: "It is hereby made the duty of the police department and force, at all times of day and night, and the members of such force are hereby thereunto empowered to * * regulate the movement of teams and vehicles in street." Under that statute, the plaintiff might direct the movements of defendant's vehicle to and fro, for the purpose of clearing the street, or keep it still altogether; but he could not utilize the motive power for the movement of other vehicles, nor could he direct the defendant's servant to put the vehicle to a use for which he was not employed, and to which the defendant had, so far as appears in these papers, never assented, expressly or impliedly. Whatever was necessary or proper for the service of the defendant was within the motorman's authority, but that was limited to its appropriate use. He was not authorized to depart from his defined function in order to operate the car in a manner foreign to the purpose of his employer. Pushing the coal truck up the grade was work which the motorman did primarily for the policeman, and in so doing he used the power and vehicle of the defendant for what was not contemplated either in its construction or operation or in his own employment. The motorman, it is true, denies that he was negligent, or that he in any wise disobeyed the instructions given by his incidental employer, the policeman. That matters not here, however, as his negligence, if any, was not the negligence of the defendant. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

(87 App. Div. 317.)

KIELEY et al. v. BARRON & COOKE HEATING & POWER CO. (Supreme Court, Appellate Division, First Department. November 6, 1903.) 1. COMPLAINT-VERIFICATION-EFFECT.

The verification of a complaint to the effect that the allegations are true except as to those matters therein stated to be alleged on informa tion and belief, and that those are believed to be true, where all the alle gations of the complaint are positive, is equivalent to an unqualified verification that the allegations are true to the knowledge of the affiant. 2. CORPORATIONS-TEMPORARY RECEIVER-AUTHORITY OF COURT.

Code Civ. Proc. § 1788, authorizing the court in actions against corporations to appoint a receiver at any stage thereof, does not justify the appointment of a receiver on the allegations of the complaint alone before the expiration of the time for defendant to answer, the appointment before final judgment not being authorized except where it satisfactorily appears that it is necessary to the protection of plaintiff's rights.

¶ 1. See Pleading, vol. 39, Cent. Dig. § 894.