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Me. 139, the court said: “Where, at the re- 1 of the decree of the circuit court. It is quest of the party with whom he deals, one not asserted in the foregoing opinion that makes his promissory note (which is to be a Richard M. Neely personally obligated himpartial payment for a piece of work to be self in respect of existing encumbrances, done for him), payable to a third party, who nor that he was guilty of bad faith, nor, is a creditor of the party with whom he except by suggestion or inference, that he contracts for the work, and it is credited was aware, or even had any suspicion, that by the payee to such party in good faith, his mother had failed to lift or make satisthe maker cannot set up a failure of con- factory provision concerning the annuities sideration, as between himself and the during the months succeeding his sole conparty with whom he deals, in defense of nection with the transaction. Nor is the a suit upon such note in the name of the result rested on a contention that he did payee."

not pay his mother full value for the note The English rule is the same. Munroe and mortgage. v. Bordier, 8 C. B. 862; Poirier v. Morris, It is said in the foregoing opinion that 2 El. & Bl. 89.

the deed, note, and mortgage “were prepared Moreover, it common doctrine, no long- by Annie H. Neely, or by one of her agents.” er open to debate, that knowledge of the A cursory reading of the opinion would conditions surrounding the consideration convey the inference that Richard M. Neely of a promissory note, without knowledge may have been the agent, or may have of a breach, will not affect the rights of been present. But the record shows, witha purchaser. Miller v. Ottaway, 81 Mich. out dispute, that he was not present, did 196, 8 L. R. A. 428, 21 Am. St. Rep. 513, not prepare any of the instruments, and 45 N. W. 665; Rublee v. Davis, 33 Neb. 779, did not in any manner participate in the 29 Am. St. Rep. 509, 51 N. W. 135. closing of the sale. And it does not ap

In United States Nat. Bank v. Floss, 38 pear that he was aware of any default of Or. 68, 84 Am. St. Rep. 752, 62 Pac. 751, it his mother when the deed was delivered. was held that knowledge in the purchaser of It is also said in the foregoing opinion that a note that it was given in consideration of what amount, if any, he paid his mother a good title to land does not affect his for the note and mortgage, was "left in right to recover, in case of a breach of the grave doubt by the evidence;" and while contract to convey, unless he knew the this is said to be immaterial, in the view breach had already occurred.

of the case which is adopted, its tendency In Parsons on Notes & Bills it is said is to support an inference that, after all, that knowledge on the part of the holder, a just result was attained by the opinion at the time he took the note, that it was of the court. I have already observed that not to be paid on a specified contingency, it was overwhelmingly shown that the conis not sufficient to defeat his right to re sideration was paid, and where it came cover, although the contingency had then from, and that counsel for Williams assisthappened, if he was ignorant of the fact. ed in showing it. The greater portion of Vol. 1, p. 261.

it came from the payment for another tract In Tiedeman on Commercial Paper it is of land, which belonged to Richard M. said: “The authorities generally hold that Neely and a brother, and in which their the purchaser of commercial paper is not mother had no interest whatever. Again, burdened with the requirement to see to the fact is referred to in the foregoing opinthe execution and full performance of the ion that Richard M. Neely was one of the consideration merely because he knows what sureties upon the bond of his mother as it is.” $ 300.

executrix. It is true that he was, but Under the settled rule of the Supreme I am at a loss to perceive why that fact Court, a much stronger case could be as- was referred to

remotely jussumed against Richard M. Neely than the tifying the conclusion which was reached. record justifies, and yet not impair his right The suit was not one directly or indito recover from Williams. That rule is rectly to reach Richard M. Neely's rethat bad faith alone will defeat the right sponsibility as a surety. Moreover, the of the purchaser, but a suspicion of a maximum of his liability as a surety was defect or knowledge of circumstances that limited by the bond to $1,000, and that might excite such suspicion in the mind is not the limit which the court in the foreof a cautious person, or even gross neg- going opinion has placed upon his liability ligence at the time, is insufficient. Hotch- to respond for the breach of his mother's kiss v. National Shoe & Leather Bank, 21 covenant against encumbrances. On the Wall. 354, 359, 22 L. ed. 645, 649; Murray contrary, it is expressly said that the unv. Lardner, 2 Wall. 110, 17 L. ed. 857. . discharged encumbrances are about equal

With these principles in mind, I am to the amount of the note, which is now unable to find any support for the reversal' several times the penal sum of the bond of

as

even.

the executrix. The case of Williams is gage, or absence of consideration for his solely supported by a number of unrelated purchase of them. facts and circumstances which are consistent For these reasons, I am of the opinion with his own mistake, negligence, or volun- that the decree of the circuit court should tary acquiescence when the sale was consum- be affirmed. mated, but which neither singly nor in combination show bad faith on the part of Petition for rehearing denied February Richard M. Neely, or knowledge of the fail. 10, 1905. ure of consideration for the note and mort

KANSAS SUPREME COURT.

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17

Charles N. STEPHENSON, Piff. in Err., gence, or an act not amounting to wanton

wrong, is the proximate cause of an injury, Terra CORDER, by Next Friend. it must appear that the injury was the

natural and probable consequence of the (........ Kan.........)

negligence or wrongful act, and that it ought

to have been foreseen in the light of the at*A farmer had driven a team of elev-tending circumstances.

en-year-old horses miles to wagon loaded

Milwaukee & St. P. R. Co. v. Kellogg, 94 with about ton's weight; had hitched one of them, as he U. S. 469, 24 L. ed. 256; Cleghorn v. Thomphad been frequently in the habit of doing, to a son, 62 Kan. 727, 54 L. R. A. 402, 64 Pac. hitching rail in front of a store ; was engaged 605. In unloading his wagon, going back and forth

Mr. C. E. Elliott, for defendant in error: for this purpose but a short distance. The hal

Leaving a horse or team unhitched, or ter with which the horse was hitched was apparently in good condition, and no defect negligently hitched, renders the owner liable therein was shown. While the team was to any and all damages that may occur standing quietly, a boy, in turning over the by reason of a runaway. hitching rail near the head of the team,

Phillips v. Dewald, 79 Ga. 732, 11 Am. St. struck the nose of the one hitched with his foot, which frightened the team and caused Rep. 458, 7 S. E. 151; Pierce v. Conners, them to break loose, by breaking the halter, 20 Colo. 178, 46 Am. St. Rep. 279, 37 Pac. and run away, causing damage. Held, that 721; Griffiths v. Clift, 4 Utah, 462, 11 Pac. the striking of the horse by the boy was the 609. proximate cause of the accident.

If the jury found that Stephenson was

negligent, that was their province. (May, 6, 1905.)

Union P. R. Co. v. Rollins, 5 Kan. 167;

Caulkins v. Mathews, 5 Kan. 191; Chicago, RROR to the District Court for Sumner K. & W. R. Co. v. Prouty, 55 Kan. 503, 40

County to review a judgment in favor Pac. 909; Atchison, T. & 8. F. R. Co. v. of plaintiff in an action brought to recover Rowan, 55 Kan. 270, 39 Pac. 1010; Kinchdamages for personal injuries alleged to low v. Midland Elevator Co. 57 Kan. 374, have been caused by defendant's negligence. 46 Pac. 703. Reversed.

A defendant is not liable in negligence The facts are stated in the opinion. where no injurious consequences could rea

Messrs. Herrick & Herrick and Ivan sonably have been contemplated as a result D. Rogers, for plaintiff in error:

of the act or omission complained of, but It was the duty of the court to determine is liable where injuries might have been what was the proximate cause of the injury anticipated or foreseen. to the plaintiff, and any determination of 21 Am. & Eng. Enc. Law, 2d ed. p. 486; the question, made by the jury, is not bind- Mastin v. Levagood, 47 Kan. 36, 27 Am. St. ing or conclusive on the court.

Rep. 277, 27 Pac. 122. Missouri P. R. Co. v. Columbia, 65 Kan. It is immaterial that a boy frightened the 390, 58 L. R. A. 399, 69 Pac. 338.

horse, causing him to run, where the de In order to warrant a finding that negli- fendant was negligent in leaving him.

McCahill v. Kipp, 2 E. D. Smith, 413; 21 *Headnote by CUNNINGHAM, J.

Am. & Eng. Enc. Law, 2d ed. p. 487.

NOTE.-On the question of proximate cause as affected by intervening agency, see also, in this series, notes to Smith v. County Court, 8 L. R. A. 82, and Smithwick v. llall & U. Co. 12 L. R. A. 279; also the later cases of Pennsylvania R. Co. v. Hammill, 24 L. R. A. 531 ;

Goodlander Mill Co. v. Standard Oil Co. 27 L. R. A. 583; Stone v. Boston & A. R. Co. 41 L. R. A. 794; Southern R. Co. v. Webb. 59 L. R. A. 109: Cole v. German Sav. & L. Soc. 63 L. R. A. 416; and Nelson v. Narragansett Electric Lighting Co. 67 L. R. A. 116.

was

The question of proximate cause is a mat- how long does not appear, but it was apter for the jury.

parently in a fair condition. When he drove 21 Am. & Eng. Enc. Law, 2d ed. p. 508; up he noticed some boys standing around. Missouri, K. & T. R. Co. v. Byrne, 40 C. C. They not infrequently came to him to get A. 402, 100 Fed. 359; Central Branch Union such damaged fruit or melons as he might P. R. Co. v. Hotham, 22 Kan. 41; Atchison, wish to give them, and for that purpose fre7. & S. F. R. Co. v. McCandliss, 33 Kan. 374, quently climbed upon the hind part of the 6 Pac. 587; Southern Kansas R. Co. v. San- wagon. After hitching the team, he proford, 45 Kan. 372, 11 L. R. A. 432, 25 S. W. ceeded to unload his produce, passing back 891; Missouri P. R. Co. v. Hildebrand, 52 and forth from the wagon to the grocery. Kan. 284, 34 Pac. 738.

While he was passing into, or while in, the

grocery on one of these trips, a boy, in turnCunningham, J., delivered the opinion ing over the hitch rail, or, as the witness of the court:

termed it, making a "flip-flop,” struck the This is the action of Terra Corder to re- mare on the nose with his foot, frightening cover for her personal injuries. There is no the team, and causing them to rear back material conflict of the evidence as to the with such force as to break the chin strap facts of the case.

of the halter with which the mare Mr. Stephenson was a market gardener hitched, so that the team became loosened, living about 17 miles from the city of Wel- ran down the street and collided with a lington, to which city, during the season for buggy in which Miss Corder was riding, marketing fruit and vegetables, extending threw her out and very severely injured her. about four months through the summer, Before the boy struck the mare with his foot during the term of over twelve years, he the team had been standing quietly. It was drove two or three times a week with his accustomed to being hitched in this manner loads of produce. For four years of this and place. A verdict was returned in favor time prior to August 5, 1901, he drove the of the plaintiff below, and judgment entered same team that he did upon that day. It thereon. consisted of a horse and a mare, each eleven Many errors are assigned, some of which years old. They had been raised and broken might serve to reverse and remand for a by Mr. Stephenson, and used upon his farm new trial. We prefer, upon the plain facts and for road purposes. His young daughters of the case, to address ourselves to vital were accustomed to drive the team, and it questions, rather than mere matters of pracwas considered safe and trustworthy by him. tice. On one occasion, two years prior to the date The basis of defendant's liability, of above named, a team consisting of the mare course, was his alleged negligence. This in question and another horse, while stand- was in his leaving his team standing inseing unhitched in a field, became frightened, curely hitched or fastened. The only delinat the sudden appearance through a nearby quency in this respect which can be claimed hedge, of Mr. Stephenson’s young daughter, for the evidence is that the chin strap of the and ran off with a plow to which they were halter was not sufficient, and the only eviattached. On another occasion the same dence to support such a claim is that it mare, with another horse, becoming unbroke. It may well be questioned whether, hitched in some unknown way in the town under the evidence in this case, the fact of of Belle Plain, ran about a block and a half. its breaking draws with it any presumption No other instances of misconduct or vicious- that it was defective so as to make its use ness by this team or either of them was under ordinary circumstances negligence. In shown. They were well broken and quiet, Missouri & K. Teleph. Co. v. Vandervort and had never been known to pull at the (Kan.) 79 Pac. 1068, where a neck-yoke halter when hitched. On August 5, 1901, strap was broken by the sidewise plunge of Mr. Stephenson, in accordance with his cus- a freightened team, this court said: “There tom, having driven to Wellington from his is no evidence from which the jury might home, 17 miles away, late in the afternoon, have found that the harness was defective; with a load weighing from 1,800 to 2,200 the only evidence being that of the plaintiff pounds, stopped his team in front of a himself, where he said: 'My harness had grocery store in order to unload his produce. been used about five months, or scarcely He drove up in an angling direction toward that.'There was little, if anything, more the hitching rail, so that the mare being on shown in the case at bar. the inside, and nearest the rail, he hitched Ordinary care is all that was required of her only. The headstall of the halter with the defendant, and ordinary care does not which she was hitched was made of 114-inch require that all possible means for avoiding leather; the hitching part was a rope 12 inch accident should be availed of. Quite true, or more in diameter. It was a halter which the accident would not have occurred had he had been in the habit of using, but for the berses been hitched to an unbreakable

cause

rack with an unbreakable chain. Neither | all the attending circumstances, ordinary would it have occurred had not the defend- prudence would have admonished the person ant driven to the city on that day, but sought to be charged with the negligence ordinary care does not require the use of that his act or omission would probably such precautions; if it did, it would, in the result in injury to someone. The general language of this court in Cleghorn v. Thomp- test as to whether negligence is the proxison, 62 Kan. 727, 54 L. R. A. 402, 64 Pac. mate cause of an accident is therefore said 605, “paralyze human effort and action on to be whether it is such that a person of all lines.” What the defendant was doing ordinary intelligence should have foreseen at the time was what he had done many that an accident was liable to be produced times before without injury, and apparently thereby. Proximate

is therefore what he or any reasonably prudent man probable cause, and remote cause is improbawould have done under the circumstances. ble cause.” 1 Thomp. Neg. $ 50. This court It is suggested that the fact that he saw early attempted to analyze the philosophy boys about there ought to have warned him and make a definition of proximate cause. that some of them might do the thing that It said in the case of Atchison, T. & 8. F. R. the boy in question did. We hardly think Co. v. Stanford, 12 Kan. 377, 15 Am. Rep. this suggestion can be seriously urged; cer 362, in speaking of a wrongdoer: “He is tainly it cannot be seriously entertained. responsible for any number of injurious reNeither do we see anything in the character sults consecutively produced by impulsion, of the team which warrants any extraordi- one upon another, and constituting distinct nary precaution in the matter of fastening and separate events, provided they all necesthem. Whatever of dereliction was shown sarily follow from the first wrongful cause. was not because of their breaking loose when Any number of causes and effects may intertied, but because the mare had run away on

vene between the first wrongful cause and two separate occasions upon sufficient prov. the final injurious consequence; and if they ocation or otherwise. Ordinarily the team .was roadworthy, being well broken and are such as might, with reasonable diligence, quiet, and it is shown that neither of them have been foreseen, the last result, as well as had ever been known to pull at the halter the first and every intermediate result, is when hitched.

to be considered in law as the proximate reDid affirmance rest upon a sufficient show- sult of the first wrongful cause. But whening of defendant's negligence, we should ever a new cause intervenes which is not a greatly hesitate to affirm. The further consequence of the first wrongful cause, question of the proximate cause of the in- which is not under the control of the wrongjury, however, demands our attention, and doer, which could not have been foreseen by we pass to its consideration.

the exercise of reasonable diligence by the The jury, in answer to one of the special wrongdoer, and except for which the final inquestions, and, as we think, in exact accord-jurious consequence could not have hapance with the evidence, found that the horses pened, then such injurious consequence must were caused to become frightened and to run be deemed to be too remote to constitute away because the boy struck the one that the basis of a cause of action.” The court, was tied, on the nose, with his foot.

So, in Wright v. Chicago & N. W. R. Co. 27 Ill. granting that the team was not tied as App. 212, quotes the foregoing with apsecurely as ordinary care would have re

proval, and adds that the words in italics quired, we are confronted with the fact that point out the correct distinction. In Chicago, this neglect did not cause the accident, and it is well settled that it is the proximate Pac. 209, the law relative to proximate cause

K. & W. R. Co. v. Bell, 1 Kan. App. 71, 41 cause of an injury which must bear the is stated as follows: "Before an act of negliburden of the result. Many law-writers and courts have attempted to give us a definition gence can be made the basis for a recovery of

damages, it must appear that such act was of proximate cause, fairly intelligible, which should be of such flexibility as to be adapted the natural and proximate cause of the in

In to general application. They have but injury, or directly contributed thereto." differently succeeded; neither will they in Cleghorn v. Thompson, 62 Kan. 727, 54 L. the future succeed any better. A definition R. A. 402, 64 Pac. 605, the following from from one of the most recent authors, and, Allegheny v. Zimmerman, 95 Pa. 295, 40 perhaps, from all considerations, one of the Am. Rep. 649, was quoted with approval: fairest, is the following: “Negligence is the "One is answerable in damages for the consefailure to exercise the ordinary care of pru- quences of his faults only so far as they are dent men under all the attending circum- natural and proximate, and may therefore stances. It follows that the negligence of a have been foreseen by ordinary forecast, and person cannot be the proximate cause of a not for those arising from a conjunction of harm to another following it, unless, under I his own faults with circumstances of an ex

traordinary nature.” In Missouri P. R. Co. reasonably have been foreseen by a man of v. Columbia, 65 Kan. 390, 58 L. R. A. 399, ordinary intelligence and prudence.' 69 Pac. 338, this court has given its most | In cases of this character, where two disrecent views upon the question; which case tinct, successive causes, unrelated in operain its ultimate conditions bears a strong tion, to some extent contribute to an injury, analogy to the one at bar. In the syllabus it is settled that, where there is an interof the case the court announces the law as vening and direct cause, a prior and remote follows: "In a case where two distinct, suc- cause cannot be made the basis for recovery cessive causes, wholly unrelated in opera- of damages, if such prior cause did no more tion, contribute toward the production of an than furnish the condition, or give rise to accident resulting in injury and damage, one the occasion, by which the injury was made of such causes must be the proximate, and possible. It seems to be sound in principle, the other the remote, cause of the injury.” and well settled by authority, that where it “A prior and remote cause cannot be made is admitted or found that two distinct, sucthe basis of an action for the recovery of cessive causes, unrelated in their operation, damages, if such remote cause did nothing conjoin to produce a given injury, one of more than furnish the condition, or give rise them must be the proximate, and the other to the occasion, by which the injury was the remote, cause of the injury, and the made possible, if there intervened, between court, in passing on the facts as found or such prior or remote cause and the injury, a admitted to exist, must regard the proxidistinct, successive, unrelated, and efficient mate as the efficient and consequent cause, cause of the injury.” “In a case where it is and disregard the remote cause. either admitted, or from the facts as found

Now, if we grant that the chin strap of established, that two distinct, successive the halter was defective, and that this sufcauses, unrelated in their operation, con- ficiently appeared in the evidence, and that joined to produce a given injury, the ques. Stephenson knew of this defect, can it be tion of remote and proximate cause becomes said, in view of the law as heretofore laid one of law for the decision of the court, and down by this court, that such defect was the not of fact for the determination of the jury, proximate cause of the accident? The inand the determination of this question of jurious result would not have followed had law by the jury is not binding or conclusive not the new and independent cause interon the court." In the body of the opinion vened. This new cause had no causal conthis further discussion was had: “The existence or nonexistence of negligence in any The hitting of the mare on the nose by the

nection with the negligence of Stephenson. given case wherein the facts are disputed is a question of fact to be determined by the boy was not caused by the defect in the jury. When the facts are undisputed, and halter, neither was it under the control of only one inference or deduction is to be Stephenson, neither can it be said with the drawn from them, a question of law is pre- foreseen by the exercise of reasonable dili

slightest fairness that it could have been sented for the court. Dewald v. Kansas City, Ft. 8. & G. R. CO. 44 Kan. 586, 24 Pac. 1101. gence on his part. The most that can be said However, it is not every act of negligence is that the defect in the halter,—if defective, that furnishes a basis for recovery of dam--and the frightening of the team by one of ages sustained. In the case of Cleghorn v.

them being struck on the nose by the boy's Thompson, 62 Kan. 727, 54 L. R. A. 402, 64 foot, were two distinct successive causes, Pac. 605, this court held: 'Negligence, to be wholly unrelated in operation, which conactionable, must result in damage to some.

tributed to the production of the accident one, which result, in the absence of wanton resulting in the injury and damage; and ness or malus animus, might have been rea

therefore the frightening of the team, being sonably foreseen by a man of ordinary in the immediate and probable cause, is the telligence and prudence, and be the probable proximate cause, and the defect in the halresult of the initial act. The allegation of ter, being the secondary and improbable negligence is not sustained by evidence of cause, is the remote cause. This being so, acts resulting in damage to another, which the defendant, Stephenson, was not liable result is not the reasonable and ordinary for the unfortunate accident, and his request outcome of such acts, and which would not that the jury be so instructed should have have been foreseen or anticipated by the ex

been granted. ercise of ordinary prudence and foresight

The judgment will be reversed, and the

case remanded for further proceedings. under all the circumstances of the case. Negligence is not the proximate cause of an accident, unless, under the circumstances,

All the Justices concur. the accident was a probable as well as natural consequence thereof,-one which might Petition for rehearing denied.

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