Me. 139, the court said: "Where, at the request of the party with whom he deals, one makes his promissory note (which is to be a partial payment for a piece of work to be done for him), payable to a third party, who is a creditor of the party with whom he contracts for the work, and it is credited by the payee to such party in good faith, the maker cannot set up a failure of consideration, as between himself and the party with whom he deals, in defense of a suit upon such note in the name of the payee." The English rule is the same. Munroe v. Bordier, 8 C. B. 862; Poirier v. Morris, 2 El. & Bl. 89. Moreover, it is common doctrine, no longer open to debate, that knowledge of the conditions surrounding the consideration of a promissory note, without knowledge of a breach, will not affect the rights of a purchaser. Miller v. Ottaway, 81 Mich. 196, 8 L. R. A. 428, 21 Am. St. Rep. 513, 45 N. W. 665; Rublee v. Davis, 33 Neb. 779, 29 Am. St. Rep. 509, 51 N. W. 135. In United States Nat. Bank v. Floss, 38 Or. 68, 84 Am. St. Rep. 752, 62 Pac. 751, it was held that knowledge in the purchaser of a note that it was given in consideration of a good title to land does not affect his right to recover, in case of a breach of the contract to convey, unless he knew the breach had already occurred. In Parsons on Notes & Bills it is said that knowledge on the part of the holder, at the time he took the note, that it was not to be paid on a specified contingency, is not sufficient to defeat his right to re cover, although the contingency had then happened, if he was ignorant of the fact. Vol. 1, p. 261. In Tiedeman on Commercial Paper it is said: "The authorities generally hold that the purchaser of commercial paper is not burdened with the requirement to see to the execution and full performance of the consideration merely because he knows what it is." § 300. Under the settled rule of the Supreme Court, a much stronger case could be assumed against Richard M. Neely than the record justifies, and yet not impair his right to recover from Williams. That rule is that bad faith alone will defeat the right of the purchaser, but a suspicion of a defect or knowledge of circumstances that might excite such suspicion in the mind of a cautious person, or even gross negligence at the time, is insufficient. Hotchkiss v. National Shoe & Leather Bank, 21 Wall. 354, 359, 22 L. ed. 645, 649; Murray v. Lardner, 2 Wall. 110, 17 L. ed. 857. . With these principles in mind, I am unable to find any support for the reversal of the decree of the circuit court. It is not asserted in the foregoing opinion that Richard M. Neely personally obligated himself in respect of existing encumbrances, nor that he was guilty of bad faith, nor, except by suggestion or inference, that he was aware, or even had any suspicion, that his mother had failed to lift or make satisfactory provision concerning the annuities during the months succeeding his sole connection with the transaction. Nor is the result rested on a contention that he did not pay his mother full value for the note and mortgage. It is said in the foregoing opinion that the deed, note, and mortgage "were prepared by Annie H. Neely, or by one of her agents." A cursory reading of the opinion would convey the inference that Richard M. Neely may have been the agent, or may have been present. But the record shows, without dispute, that he was not present, did not prepare any of the instruments, and did not in any manner participate in the closing of the sale. And it does not appear that he was aware of any default of his mother when the deed was delivered. It is also said in the foregoing opinion that what amount, if any, he paid his mother for the note and mortgage, was "left in grave doubt by the evidence;" and while this is said to be immaterial, in the view of the case which is adopted, its tendency is to support an inference that, after all, a just result was attained by the opinion of the court. I have already observed that it was overwhelmingly shown that the consideration was paid, and where it came from, and that counsel for Williams assisted in showing it. The greater portion of it came from the payment for another tract of land, which belonged to Richard M. Neely and a brother, and in which their mother had no interest whatever. Again, the fact is referred to in the foregoing opinion that Richard M. Neely was one of the sureties upon the bond of his mother as executrix. It is true that he was, but I am at a loss to perceive why that fact was referred to as even remotely justifying the conclusion which was reached. The suit was not one directly or indirectly to reach Richard M. Neely's responsibility as a surety. Moreover, the maximum of his liability as a surety was limited by the bond to $1,000, and that is not the limit which the court in the foregoing opinion has placed upon his liability to respond for the breach of his mother's covenant against encumbrances. On the contrary, it is expressly said that the undischarged encumbrances are about equal to the amount of the note, which is now several times the penal sum of the bond of For these reasons, I am of the opinion that the decree of the circuit court should be affirmed. 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 with his own mistake, negligence, or voluntary acquiescence when the sale was consummated, but which neither singly nor in combination show bad faith on the part of Richard M. Neely, or knowledge of the failure of consideration for the note and mort Petition for rehearing denied February 10, 1905. KANSAS SUPREME COURT. Charles N. STEPHENSON, Plff. in Err., v. Terra CORDER, by Next Friend. ( ... ... ... ... ... ..... Kan....... .) ton's gence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the 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. Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256; Cleghorn v. Thompson, 62 Kan. 727, 54 L. R. A. 402, 64 Pac. 605. apparently in good condition, and no defect therein was shown. While the team was standing quietly, a boy, in turning over the hitching rail near the head of the team, struck the nose of the one hitched with his Mr. C. E. Elliott, for defendant in error: Leaving a horse or team unhitched, or negligently hitched, renders the owner liable to any and all damages that may occur by reason of a runaway. Phillips v. Dewald, 79 Ga. 732, 11 Am. St. foot, which frightened the team and caused Rep. 458, 7 S. E. 151; Pierce v. Conners, them to break loose, by breaking the halter, and run away, causing damage. Held, that the striking of the horse by the boy was the proximate cause of the accident. (May, 6, 1905.) F The facts are stated in the opinion. It was the duty of the court to determine what was the proximate cause of the injury to the plaintiff, and any determination of the question, made by the jury, is not binding or conclusive on the court. Missouri P. R. Co. v. Columbia, 65 Kan. 390, 58 L. R. A. 399, 69 Pac. 338. 20 Colo. 178, 46 Am. St. Rep. 279, 37 Pac. 721; Griffiths v. Clift, 4 Utah, 462, 11 Pac. 609. If the jury found that Stephenson was negligent, that was their province. Union P. R. Co. v. Rollins, 5 Kan. 167; Caulkins v. Mathews, 5 Kan. 191; Chicago, K. & W. R. Co. v. Prouty, 55 Kan. 503, 40 Pac. 909; Atchison, T. & S. F. R. Co. v. Rowan, 55 Kan. 270, 39 Pac. 1010; Kinchlow v. Midland Elevator Co. 57 Kan. 374, 46 Pac. 703. A defendant is not liable in negligence where no injurious consequences could reasonably have been contemplated as a result of the act or omission complained of, but is liable where injuries might have been anticipated or foreseen. 21 Am. & Eng. Enc. Law, 2d ed. p. 486; Mastin v. Levagood, 47 Kan. 36, 27 Am. St. Rep. 277, 27 Pac. 122. It is immaterial that a boy frightened the horse, causing him to run, where the de In order to warrant a finding that negli- fendant was negligent in leaving him. Headnote by CUNNINGHAM, J. 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. Hall & U. Co. 12 L. R. A. 279; also the later cases of Pennsylvania R. Co. v. Hammill, 24 L. R. A. 531; McCahill v. Kipp, 2 E. D. Smith, 413; 21 Am. & Eng. Enc. Law, 2d ed. p. 487. 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. The question of proximate cause is a mat- | how long does not appear, but it was apter for the jury. 21 Am. & Eng. Enc. Law, 2d ed. p. 508; Missouri, K. & T. R. Co. v. Byrne, 40 C. C. A. 402, 100 Fed. 359; Central Branch Union | P. R. Co. v. Hotham, 22 Kan. 41; Atchison, T. & S. F. R. Co. v. McCandliss, 33 Kan. 374, 6 Pac. 587; Southern Kansas R. Co. v. Sanford, 45 Kan. 372, 11 L. R. A. 432, 25 S. W. 891; Missouri P. R. Co. v. Hildebrand, 52 Kan. 284, 34 Pac. 738. parently in a fair condition. When he drove up he noticed some boys standing around. They not infrequently came to him to get such damaged fruit or melons as he might wish to give them, and for that purpose frequently climbed upon the hind part of the wagon. After hitching the team, he proceeded to unload his produce, passing back and forth from the wagon to the grocery. While he was passing into, or while in, the grocery on one of these trips, a boy, in turn Cunningham, J., delivered the opinion ing over the hitch rail, or, as the witness of the court: This is the action of Terra Corder to recover for her personal injuries. There is no material conflict of the evidence as to the facts of the case. Mr. Stephenson was a market gardener living about 17 miles from the city of Wellington, to which city, during the season for marketing fruit and vegetables, extending about four months through the summer, during the term of over twelve years, he drove two or three times a week with his loads of produce. For four years of this time prior to August 5, 1901, he drove the same team that he did upon that day. It consisted of a horse and a mare, each eleven years old. They had been raised and broken by Mr. Stephenson, and used upon his farm and for road purposes. His young daughters were accustomed to drive the team, and it was considered safe and trustworthy by him. On one occasion, two years prior to the date above named, a team consisting of the mare in question and another horse, while standing unhitched in a field, became frightened, at the sudden appearance through a nearby hedge, of Mr. Stephenson's young daughter, and ran off with a plow to which they were attached. On another occasion the same mare, with another horse, becoming unhitched in some unknown way in the town of Belle Plain, ran about a block and a half. No other instances of misconduct or viciousness by this team or either of them was shown. They were well broken and quiet, and had never been known to pull at the halter when hitched. On August 5, 1901, Mr. Stephenson, in accordance with his custom, having driven to Wellington from his home, 17 miles away, late in the afternoon, with a load weighing from 1,800 to 2,200 pounds, stopped his team in front of a grocery store in order to unload his produce. He drove up in an angling direction toward the hitching rail, so that the mare being on the inside, and nearest the rail, he hitched her only. The headstall of the halter with which she was hitched was made of 11⁄4-inch leather; the hitching part was a rope 1⁄2 inch or more in diameter. It was a halter which he had been in the habit of using, but for termed it, making a "flip-flop," struck the mare on the nose with his foot, frightening the team, and causing them to rear back with such force as to break the chin strap of the halter with which the mare was hitched, so that the team became loosened, ran down the street and collided with a buggy in which Miss Corder was riding, threw her out and very severely injured her. Before the boy struck the mare with his foot the team had been standing quietly. It was accustomed to being hitched in this manner and place. A verdict was returned in favor of the plaintiff below, and judgment entered thereon. Many errors are assigned, some of which might serve to reverse and remand for a new trial. We prefer, upon the plain facts of the case, to address ourselves to vital questions, rather than mere matters of practice. The basis of defendant's liability, of course, was his alleged negligence. This was in his leaving his team standing insecurely hitched or fastened. The only delinquency in this respect which can be claimed for the evidence is that the chin strap of the halter was not sufficient, and the only evidence to support such a claim is that it broke. It may well be questioned whether, under the evidence in this case, the fact of its breaking draws with it any presumption that it was defective so as to make its use under ordinary circumstances negligence. In Missouri & K. Teleph. Co. v. Vandervort (Kan.) 79 Pac. 1068, where a neck-yoke strap was broken by the sidewise plunge of a freightened team, this court said: "There is no evidence from which the jury might have found that the harness was defective; the only evidence being that of the plaintiff himself, where he said: 'My harness had been used about five months, or scarcely that.'- There was little, if anything, more shown in the case at bar. Ordinary care is all that was required of the defendant, and ordinary care does not require that all possible means for avoiding accident should be availed of. Quite true. the accident would not have occurred had the bcrses been hitched to an unbreakable 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 cause 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. & S. 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 are such as might, with reasonable diligence, was roadworthy, being well broken and 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 to be considered in law as the proximate reBut when when hitched. Did affirmance rest upon a sufficient show-sult of the first wrongful cause. ing of defendant's negligence, we should greatly hesitate to affirm. The further question of the proximate cause of the injury, however, demands our attention, and we pass to its consideration. ever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequence could not have happened, then such injurious consequence must be deemed to be too remote to constitute the basis of a cause of action." The court, in Wright v. Chicago & N. W. R. Co. 27 Ill. App. 212, quotes the foregoing with approval, and adds that the words in italics point out the correct distinction. In Chicago, K. & W. R. Co. v. Bell, 1 Kan. App. 71, 41 Pac. 209, the law relative to proximate cause is stated as follows: "Before an act of negli The jury, in answer to one of the special questions, and, as we think, in exact accordance with the evidence, found that the horses were caused to become frightened and to run away because the boy struck the one that was tied, on the nose, with his foot. So, granting that the team was not tied as securely as ordinary care would have required, we are confronted with the fact that this neglect did not cause the accident, and it is well settled that it is the proximate cause of an injury which must bear the burden 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 of proximate cause, fairly intelligible, which damages, it must appear that such act was should be of such flexibility as to be adapted the natural and proximate cause of the into general application. They have but injury, or directly contributed thereto." In differently succeeded; neither will they in the future succeed any better. A definition from one of the most recent authors, and, perhaps, from all considerations, one of the fairest, is the following: "Negligence is the failure to exercise the ordinary care of pru-quences of his faults only so far as they are dent men under all the attending circumstances. It follows that the negligence of a person cannot be the proximate cause of a harm to another following it, unless, under Cleghorn v. Thompson, 62 Kan. 727, 54 L. natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of 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 established, that two distinct, successive causes, unrelated in their operation, conjoined to produce a given injury, the question of remote and proximate cause becomes one of law for the decision of the court, and not of fact for the determination of the jury, and the determination of this question of law by the jury is not binding or conclusive on the court." In the body of the opinion this further discussion was had: "The ex istence or nonexistence of negligence in any given case wherein the facts are disputed is a question of fact to be determined by the jury. When the facts are undisputed, and only one inference or deduction is to be drawn from them, a question of law is pre sented for the court. Dewald v. Kansas City, Ft. S. & G. R. Co, 44 Kan. 586, 24 Pac. 1101. However, it is not every act of negligence that furnishes a basis for recovery of damages sustained. In the case of Cleghorn v. Thompson, 62 Kan. 727, 54 L. R. A. 402, 64 Pac. 605, this court held: 'Negligence, to be actionable, must result in damage to someone, which result, in the absence of wantonness or malus animus, might have been reasonably foreseen by a man of ordinary intelligence and prudence, and be the probable result of the initial act. The allegation of negligence is not sustained by evidence of acts resulting in damage to another, which result is not the reasonable and ordinary outcome of such acts, and which would not have been foreseen or anticipated by the exercise of ordinary prudence and foresight under all the circumstances of the case. Negligence is not the proximate cause of an accident, unless, under the circumstances, the accident was a probable as well as natural consequence thereof,-one which might Now, if we grant that the chin strap of the halter was defective, and that this sufficiently appeared in the evidence, and that Stephenson knew of this defect, can it be said, in view of the law as heretofore laid down by this court, that such defect was the proximate cause of the accident? The injurious result would not have followed had not the new and independent cause intervened. This new cause had no causal conThe hitting of the mare on the nose by the nection with the negligence of Stephenson. boy was not caused by the defect in the halter, neither was it under the control of Stephenson, neither can it be said with the slightest fairness that it could have been foreseen by the exercise of reasonable diligence on his part. The most that can be said is that the defect in the halter,-if defective, and the frightening of the team by one of them being struck on the nose by the boy's foot, were two distinct successive causes, wholly unrelated in operation, which contributed to the production of the accident resulting in the injury and damage; and therefore the frightening of the team, being the immediate and probable cause, is the proximate cause, and the defect in the halter, being the secondary and improbable This being so, cause, is the remote cause. the defendant, Stephenson, was not liable for the unfortunate accident, and his request that the jury be so instructed should have been granted. The judgment will be reversed, and the case remanded for further proceedings. All the Justices concur. Petition for rehearing denied. |