been no recovery against any. Judgment reversed. All the justices concurring, except SIMMONS, C. J., disqualified.

(103 Ga. 847)

MAYOR, ETC., OF CITY OF MACON et al. V. DYKES.

(Supreme Court of Georgia. July 28, 1898.) NEGLIGENCE-PROXIMATE CAUSE-ACTION AGAINST

CITY.

The negligence of the defendants not being the proximate cause of the plaintiff's injuries, he was not entitled to recover, and, consequently, the judgment in his favor was contrary to law.

Little, J., dissenting.

(Syllabus by the Court.)

Error from city court of Macon; John P. Ross, Judge.

Action by T. J. Dykes against the mayor and council of the city of Macon and the Macon Consolidated Street-Railway Company. Judgment for plaintiff, and defendants bring error. Reversed.

Minter, Wimberly, Bacon, Miller & Brunson, for plaintiffs in error. Dessan, Bartlett & Ellis and Chambers & Jordan, for defendant in error.

FISH, J. T. J. Dykes, plaintiff below, sued the mayor and council of the city of Macon and the Macon Consolidated Street-Railway Company for personal injuries. The undisputed facts proven at the trial were that plaintiff, while driving a horse attached to a two-wheeled road cart along a street in Macon upon which the railroad company had a track, attempted to drive, while the horse was in a walk, across such track at an angle of about 45 degrees. When the wheels of his cart came in contact with the iron rails of the track, the wheels slipped along the rails, and made a scraping noise. The horse immediately began to kick, jump, and run, and became wholly unmanageable. He ran at full speed along the street for some 150 feet, when the cart collided with a wagon, and plaintiff was violently thrown to the ground, and seriously injured. The height of the rails of the track above the surface of the street was variously estimated by the witnesses to be from two to four inches. An ordinance of the city made it unlawful for any street-railroad company to construct or place any track in the streets of the city, the rails of which should be above the level of the street. Plaintiff testified in reference to his horse: "After driving him nearly a year, I thought [he] was a reliable horse. I had driven him almost every day to the cart and buggy, and ploughed him some. I have seen

him under conditions in which horses disposed to kick would kick, and he never attempted to do so. He has made several attempts to run away, but was easily controlled, very biddable. He had never gotten from under my control at all. I was not afraid

of him. He was a high-strung blooded horse, but was not unreasonably frightened. I would rather say he was not easily frightened at all. He was an ordinarily gentle horse. I have had ladies to drive him. I suppose he is about as gentle as the average run of horses. He was what I con

I

sidered a reasonably safe horse. didn't regard him as a family horse. He made some few breaks; nothing that I considered at all alarming." The accident occurred on the 26th of August, and the horse had been driven to the road cart with two persons in it for a distance of 26 miles in six or six and a half hours immediately preceding the accident. The case was tried by the judge of the city court without the intervention of a jury, and judgment rendered against the defendants. Upon the overruling of their motion for a new trial they excepted.

Assuming that the defendants were guilty of negligence, the controlling question in the case is, was their negligence the proximate cause of plaintiff's injuries? There seems to be no absolutely consistent rule to guide us in determining the matter, and each case has been made by the courts to largely depend upon its own facts. The most generally accepted theory of causation, however, is that of natural and probable consequences (1 Jag. Torts, p. 74, and cases cited; Gilson v. Canal Co. (Vt.) 36 Am. St. Rep. 802, and cases cited on page 809 (s. c. 26 Atl. 70); the rule being that, in order to recover for an injury alleged to have resulted from the negligence of another, the injury must be the natural and probable consequence of the negligence; or, as otherwise stated, the wrong and the resulting damage must be known by common experience to be naturally and usually in sequence. The damage, according to the usual course of events, must follow from the wrong. Gerhard v. Bates, 2 El. & Bl. 490; Add. Torts, 6; Cooley, Torts, 69. The principle in this state seems to be substantially the same. If damages are traceable to an act of negligence, but are not its legal or material consequence, or if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery. Civ. Code, §§ 3912, 3913. This rule of remoteness is applicable both to the damages which are the result of the act and to the cause of the act. Rucker v. Manufacturing Co., 54 Ga. 84. "It is not only true that damages which are the direct product of the act are the limit, but that only such acts as preponderate largely in producing even a direct result are the subject of suit." Id. "The law-we think, wiselyonly gives an action for the prime, the leading, effective cause." Id. See, also, Belding v. Johnson, 86 Ga. 177, 12 S. E. 304. "The negligence complained of must be the main, controlling, and preponderating cause, ascertained and distinguished from other causes, in order to be the subject of a recovery."

Charge approved in Brown v. City of Atlanta, 66 Ga. 71. One guilty of negligence is only liable for proximate consequences of his wrongful act (Perry v. Railroad, Id. 746); liable only for its reasonable and probable consequences (Montgomery v. Railway Co., 94 Ga. 332, 21 S. E. 571). Negligence must be the chief and preponderating cause of injury. Gaskins v. City of Atlanta, 73 Ga. 746. "Where a wrongful act puts other forces in operation which are natural, and which the act would reasonably and probably put in action, the party who puts in force the first efficient cause will be responsible in damages for the injury proved." Cheeves v. Danielly, 80 Ga. 114, 4 S. E. 902. In reference to the subject of proximate and remote damages, Prof. Jaggard (1 Jag. Torts, p. 372) says: "In determining what is a proximate and what is a remote consequence, the English courts incline to accept the measure of damages in cases of contracts, and to award such damages as (a) directly and necessarily result from the wrong complained of; and (b) such further damages as should have been foreseen by the wrongdoer, in view of his knowledge, actual or constructive, of the special circumstances of the case. The American courts do not seem to have determined very definitely whether the test is (a) what a reasonably prudent man should have foreseen under the circumstances, or (b) what follows as a natural result in the ordinary course and constitution of nature."

After a very careful consideration of the law and the controlling undisputed facts in the case at bar, a majority of us are of the opinion that the negligence of the defendants was not the proximate cause of the injuries of which the plaintiff complained. His injuries were not the natural and probable consequences of such negligence. The only immediate and direct effect of the contact of the wheels of the cart with the rails of the track was the noise. This noise may have been a natural and probable result of such contact, but it was not reasonable and probable that an ordinarily gentle and roadworthy horse would have been so frightened by it as to instantly cause him to kick, become entirely unmanageable, and run away. Such a noise and such an extreme fright, in an ordinarily gentle horse, as to cause him to kick and run away, we think, are not known by common experience to be naturally and usually in sequence; the one does not follow the other, according to the usual course of events. The great fright of the horse for such a cause was extraordinary and exceptional in a reasonably gentle roadster. Plaintiff's injuries cannot be traced back to the negligence of the defendants except through the intermediate action of his horse, which was evidently disposed to be unruly and inclined to run away, although plaintiff considered him reliable, ordinarily gentle, and reasonably safe. A horse that had made several attempts to run away, and, after being

driven to a road cart in which two men were seated, for 26 miles on an August day, instantly kicked, became wholly unmanageable, and ran away, when the wheels of the cart came in contact with the rails of the track, making a scraping noise, evidently had a trick or habit not common to ordinarily gentle horses. To our minds, this vice of the horse, rather than the negligence of the defendants, was the conspicuously preponderating, effective, and proximate cause of plaintiff's injuries. The direct and immediate cause of plaintiff's injuries was the collision of his cart with the wagon, in consequence of the running away of the horse; it not being alleged that the wagon was a defect in the street. In Brooks v. Acton, 117 Mass. 204, which was an action against a town to recover for personal injuries caused by a defect in a highway which caused the horse driven by plaintiff to run, it was held that, if the vice of the horse caused the running, or contributed to the running, the plaintiff could not recover,-"the vice of the horse" meaning some trick or habit of plaintiff's horse other than the natural excitability common to horses; the reason for the rule being that the vice of the horse, and not the defect, was the proximate cause of the plaintiff's injury. See, also, Cook v. City of Charlestown, 98 Mass. 80; Spaulding v. Winslow, 74 Me. 533. In these cases, it is true, there was no collision of plaintiff's vehicle with the defect in the highway; but, if there had been such collision, and the vice of the horse had caused him to run, and plaintiff had been injured by such running, similar rulings would, doubtless, have been made. Judgment reversed. All the justices concurring, except LITTLE, J., dissenting.

(104 Ga. 861)

ERWIN V. ENNIS et al. (Supreme Court of Georgia. July 28, 1898.) APPEAL-BILL OF EXCEPTIONS-CONSOLIDATION OF

CAUSES.

An agreement between counsel that "three causes be submitted to the finding and decision, as to all facts and law, of [the presiding judge), without the intervention of a jury," does not amount to a consolidation of the cases, and did not authorize the losing party, who was a party to all three of the cases, to make only one motion for a new trial, and, upon the same be ing overruled, to file one bill of exceptions to this court, attempting to bring all three of the cases for decision here. This court has no jurisdiction to entertain such a bill of exceptions, and therefore in such a case the writ of error will be dismissed, notwithstanding the fact that it appears that the three cases relate to the same fund or property, each case being between different parties.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by C. C. Erwin against Woodacry & McPherson and another, and by the Rome Iron Company against C. C. Erwin, and by C. C. Erwin against Woodacry & McPherson

and others. From the judgments, C. C. Erwin brings error. Dismissed.

Dean & Dean and A. G. Ewing, for plaintiff in error. McHenry & Nunnally and J. W. Ewing, for defendants in error.

COBB, J. Three cases were pending in the superior court of Floyd county. The following agreement was entered into in reference to the same:

"C. C. Erwin vs. Woodacry & McPherson and Rome Iron Company, Garnishee.

"No. 74, Sept. Term, 1893, of Floyd Superior Court. Garnishment before a Justice of the Peace. Answer of Garnishee. Traverse Judgment and Appeal by Garnishee. "Rome Iron Company vs. C. C. Erwin and L. W. Raynes.

"No. 47, Floyd Superior Court, March Term, 1894. Petition for Injunction, Interpleader, etc. Filed Jan. 30, 1894.

“C. C. Erwin, Plff. in Fi. Fa., vs. Woodacry & McPherson, Deft. in Fi. Fa.; Rome Iron Company, Garnishee; and L. W. Raynes, Claimant.

"No. 89, Floyd Superior Court, March Term, 1894. Claim Affidavit and Bond.

"The undersigned, of counsel for the respective parties above, do hereby consent and agree that the above-stated three causes be submitted to the finding and decision, as to all facts and law, of the Hon'l W. M. Henry, judge of Floyd superior court, without the intervention of a jury. This 23rd July, 1897. "[Signed] J. W. Ewing,

"Atty. for Iron Co.
"A. G. Ewing and Dean & Dean,
"Attys. for Erwin.

"McHenry & Nunnally,
"Attys. for W. H. Ennis, Ad-
ministrator of Raynes."

Under authority of this agreement, the presiding judge made a decision which finally disposed of each case. While the decision is embodied in one order, there is in it a separate and distinct judgment in each case. It appears that the subject-matter in each case is the same, and three distinct cases arose from the fact that different parties were interested in the fund which was involved in all of them. The judgment rendered in each of the cases resulted adversely to one who was a party to all of them. One motion for a new trial was made by him in all of the cases, which being overruled, a single bill of exceptions was sued out to bring the case to this court. Whether it was in the power of the judge of the superior court to consolidate the three cases into one, so far as to authorize one motion for a new trial and one bill of exceptions, is a question not necessary to be decided in the present case. The agreement above quoted can in no event be construed to be a consent that the cases be consolidated.

By its very terms, it recognizes that there are three separate and distinct cases, and they are submitted to the decision of the presiding judge, not as one consolidated case, but as three separate and distinct cases. Properly construed, the agreement accomplishes only two purposes: First, that all of the cases should be heard by the presiding Judge without the intervention of a jury; and, second, that they should be heard at the same time. There being three separate cases, and no order of consolidation, a motion for a new trial by the losing party was necessary in each case to authorize the judge to review his rulings; and, this being true, a single bill of exceptions, which attempted to bring to this court the three distinct cases, was nugatory. Assurance Co. v. Way, 98 Ga. 746, 27 S. E. 167; Hicks v. Walker (Ga.) 30 S. E. 383. Writ of error dismissed. the justices concurring.

All

CITY ORDINANCE-DEPOTS-DRUMMERS. 1. The city council of Augusta has not, under the "general welfare clause" in the charter of that city, the power to pass an ordinance absolutely prohibiting drummers, runners, hackmen, cabmen, and all other persons from entering, with the owner's consent, a union passenger depot in such city, "to solicit custom or patrons."

2. The question whether the owner in fee of such a depot, or its lessee, may or may not lawfully grant, to one or more persons, the privilege of entering the same for the purpose of soliciting "custom or patrons," to the exclusion of all others carrying on a like business, is not made in the present case.

Simmons, C. J., and Little, J., dissenting. (Syllabus by the Court.)

Error from superior court, Richmond county; E. H. Callaway, Judge.

C. H. Cosgrove was convicted of violating an ordinance of the city council of Augusta, Reversed. and brings error.

Jos. B. Cumming and Bryan Cumming, for plaintiff in error. Wm. H. Davis, Sol. Gen., M. P. Carroll, and Wm. K. Miller, for defendant in error.

FISH, J. 1. There is nothing in the charter of the city of Augusta delegating to its city council express power to regulate hacks or the back business. The powers of the council in this respect are derived from the general welfare clause in the act of incorporation. It is elementary that a municipal corporation, in the exercise of police power conferred by the general welfare clause of its charter, for the purpose of promoting the comfort, health, convenience, good order, and safety of its citizens, may pass reasonable ordinances for the regulation of lawful trades and occupations within its limits. But it is not authorized, under such power, to make

it unlawful to carry on a lawful trade or business in a lawful manner.

a difference between prohibition of a trade and the regulation of it. Indeed, "a power to regulate seems to imply the continued existence of that which is to be regulated." An ordinance which prescribes that certain persons shall not carry on their business, which would otherwise be legitimate, in a particular place, or on certain premises, is, as to such place or premises, clearly prohibitive; and to authorize the passage of such an ordinance, where the power is undoubted, the injury to the public, which furnishes the justification for the ordinance, should proceed from the inherent character of the business when conducted at such place or upon such premises. Where, however, the business can be conducted there by proper persons without harm or inconvenience to the public, the prosecution of it should not be entirely prohibited, but such necessary police rules and regulations should be prescribed for carrying on such business in that particular locality as may be necessary for the public good. See Corporation of Toronto v. Virgo, 73 Law T. (N. S.) 449. On appeal from the supreme court of Canada, the privy council held (affirming the judgment of the court below) that, where a municipal council had power to make by-laws for "regulating and governing" hawkers, etc., they did not have power to prohibit hawkers from plying their trade at all in a substantial and important part of the city, and that a bylaw to that effect was ultra vires; that, when the legislature intended to give power to prevent or prohibit, it did so in express words; and that the provisions of the act did not intend to include a power to prevent or prohibit in a power to regulate or govern. It is stated in the opinion that it was argued that the by-law did not amount to prohibition, because hawkers might still carry on their business in certain streets of the city; but Lord Davey, speaking for the council, said: "The question is one of substance, and should be regarded from the point of view as well of the public as of the hawkers. The effect of the by-law is practically to deprive the residents of the most important part of the city of the power of buying their goods from, or trading with, the class of traders in question. At the same time the hawkers, etc., are excluded from exercising their trade in that part of the city." As somewhat in point, see Dill. Mun. Corp. (4th Ed.) § 325; 17 Am. & Eng. Enc. Law, p. 254, and notes; Tied. Lim. 289, 290; Horr & B. Mun. Ord. § 30. The case of Napman v. People, 19 Mich. 352, is very similar to the case at bar. Napman was convicted before the recorder's court of the city of Detroit of violating an ordinance of that city providing that "no porter, runner, hackman, omnibus agent

shall, on the arrival of any * • railroad cars in the city of Detroit, for a period of

be requested by a passenger to remove some trunk or other baggage from said depot," etc. The facts, as found by the recorder, were that, by an agreement between the Detroit & Milwaukee Railroad Company and the omnibus company, the drivers and agents of the latter, and they alone, were authorized and permitted to go within the depot of the former, immediately on the arrival of any train, to invite passengers to ride in their omnibuses. Napman was a driver of the omnibus company, and as such, under the above agreement, within 15 minutes after the arrival of a train at the Milwaukee depot, entered therein, and solicited passengers to take one of the vehicles of his company. It was for this act he was convicted. The supreme court, to which the case was carried by certiorari, directed that the conviction be quashed, and in the opinion says: "The main question, however, calls for a decision upon the validity of a prohibition which would prevent railroad companies from making such arrangements as one found by the recorder to have been entered into here. We have no difficulty in deciding that the city cannot lawfully interpose to prohibit such arrangements. The acts done are done upon the private premises of the railroad companies, over which the city can have no general control; and we think there is no reason why these companies, in their character of carriers of passengers, may not properly make such arrangements as will facilitate their reaching their destination anywhere in the city as well as at the end of the track in the depot. Passengers who are strangers in the city have no means of knowing the character of the runners they may encounter outside of the depot, and, if they can deal without confusion and at their leisure with responsible agents, it will be much more convenient and safe than to compel them to select from among strangers and in the noise and bustle attendant upon the arrival of the cars. Such contracts of employment made in the cars and on the premises by the companies cannot lawfully be restrained by the city authorities. No driver can, without permission, go, of right, on the private property of the railroad company, unless employed by a passenger, and the city could give him no authority to do so, and any arrangements for the delivery of passengers and their baggage, not unlawful in themselves, which are made by the railroads in their own cars, and on their own lands, are exempt from municipal interference, and the ordinances, so far as they may attempt such interference, are invalid." This court held in Fluker v. Railroad Co., 81 Ga. 461, 8 S. E. 529 (Syl., point 1), that "the

dominion of a railroad corporation over its trains, tracks, and 'right of way' is no less complete or exclusive than that which every owner has over his own property. Hence the corporation may exclude whom it pleases, when they come to transact their own private business with passengers or third persons, and admit whom it pleases, when they come to transact such business. This applies to selling lunches to or soliciting orders from passengers for the sale of lunches." See cases cited at the end of first paragraph of the opinion, page 464, 81 Ga., and page 530, 8 S. E.; also, Railroad Co. v. Tripp, 147 Mass. 35, 17 N. E. 89; Griswold v. Webb (R. I) 19 Atl. 143; Perth General Station Committee v. Ross, 8 Am. & Eng. R. Cas. (N. S.) 639, and cases cited in note. While it may be true that to permit all the hackmen in a city to go into the railroad depots upon the arrival of trains, and, without rules regulating their conduct, allow them to offer their services and solicit patronage, would naturally create great confusion and bewilderment, and be very annoying, embarrassing, and harassing to passengers, yet the railroad company has the right to prevent this by excluding them all (see Fluker's Case, supra), or by making such rules and regulations as would obviate the evils. See Cole v. Rowen (Mich.) 50 N. W. 138; Bus Co. v. Sootsma, 84 Mich. 194, 47 N. W. 667. If necessary, the municipality, by prescribing reasonable rules for the conduct of hackmen while plying their trade upon the premises of the railroad companies, could avoid the annoyance, etc., to which the public might otherwise be subjected. As we have already seen, the dominion of a railroad company over its depot grounds is no less complete and exclusive than that which any other owner has over his own property, and the corporation can admit or exclude whom it pleases, except when they may come to transact business with it as a common carrier. Fluker's Case, supra. Therefore the railroad company, if it should see fit, could keep all the hackmen out of its depot grounds, if they did not come to transact business with it as a common carrier, or, if it pleased, it could admit them all upon its premises, unless legally deprived of such right by the city ordinance in question.

t

The right to permit hackmen to ply their trade upon its premises, by there soliciting patronage, is a valuable property right belonging to the railroad company, similar to its right to sell or lease to another the privilege of conducting a restaurant, news stand, lunch counter, storage rooms for parcels, etc., in its depot, which, although its exercise may be regulated, cannot be completely taken away by the municipality under the power granted it in the general welfare clause of its charter. To do so would be to deprive the railroad company of its property without due process of law. Moreover, the carrying on of a public hack business,

not having any inherent evils, is lawful in itself; and where the privilege of soliciting custom for one's hack upon the premises of another, much frequented by the public needing hacks, has been secured from the owner of the premises, such privilege also becomes a valuable property right, of which the owner cannot be entirely deprived by the city under the power granted in its general welfare clause. Of course, the city, under such power, may regulate the exercise of the right by such reasonable rules as may be necessary for the comfort, convenience, and safety of the public.

2. The question whether a railroad company can lawfully grant to one or more hackmen the exclusive privilege of entering its depot for the purpose of soliciting and obtaining patronage is not made in this case. The only point presented by the writ of error is, did the city of Augusta, under the power conferred by the general welfare clause of its charter, have the authority to pass the ordinance prohibiting all hackmen from entering the depot to solicit patronage therein, although the railroad company might consent for them to enter for such purpose? Whatever may be the rights, if any, of hackmen who may have been excluded from the depot, they are not here complaining. The fact that the employer of the plaintiff may have secured from the railroad company the exclusive privilege of plying his trade in its depot can certainly shed no light upon the question as to whether or not the city, under its charter, could lawfully exclude all persons engaged in the same business from the depot. The question made is whether Cosgrove was rightfully there, and not whether others were wrongfully excluded. Judgment reversed. All the justices concurring, except SIMMONS, C. J., and LITTLE, J., dissenting.

HATCHER v. SMITH.

(103 Ga. 843)

(Supreme Court of Georgia. July 28, 1898.) EXECUTION-PROPERTY SUBJECT-UNCERTAIN IN

son,

*

*

*

TERESTS-WILLS.

1. Where a testator devised to a named son described land, "for the use of my said son, his wife and children, during his natural life, and after his death to be equally divided between any children he may leave," further providing, "It is my intention that said land shall at no time be subject to the debts of my said but shall be for the support of himself and family during his natural life, and after his death to be divided as before stated;" and where such testator bequeathed to the same son an interest in certain railroad stock, providing, as to it, "The portion or share of my * shall be for the support of my said son and his family during the term of the natural life of my said son, and after his death to be equally divided between any children he may leave,"-held, that even if, under a proper construction of this devise and bequest, any legal life estate in the corpus of the property passed to the son, it was, at a time when he had a living child or children with a pos

son