Hoag v. Lake Shore, etc., Railroad Company. was finished probably twenty. A building intended for a church may never be finished, or its use may be changed. On what principle, under the new Constitution, should the property be exempted from taxation before it can be used, when it is the use only which gives it a title to exemption? An argument is founded on the instance of unfinished courthouses, jails, school-houses, etc. It is inapplicable, however, for these buildings belong to a different branch of the exemption clause. It reads, "exempt from taxation public property used for public purposes, actual places of religious worship, places of burial," etc. The first and second branches are wholly dissimilar. In the former the words "public property" have a wider meaning, and possibly might cover an unfinished building upon it, not yet in use. It might be argued that the property is used for a public purpose when a commencement to build is made upon it. But this cannot be attributed to the expressions "actual place of religious worship," or "a regular place of stated worship," as we have seen it is the use which defines the place or locality used, in order to give ground for the exemption. It is therefore clear that this unfinished structure, misnamed a cathedral, is not an actual place of religious worship as defined in the Constitution, nor a regular place of stated worship, as described in the law, and is, therefore, not entitled to exemption from payment of taxes. The judgment should be affirmed. MERCUR, J., dissents. Judgment affirmed. HOAG V. LAKE SHORE, ETC., RAILROAD COMPANY. (85 Penn. St. 293.) Negligence-remote and proximate cause. An oil train on defendant's railway was thrown from the track by a recent land slide, and the oil-tanks bursting, the oil became ignited and ran down into an adjoining creek, swollen by recent rains, and flowing down the creek, set fire to and destroyed the plaintiff's buildings three or four hundred feet distant. Held, that even if defendants were negligent, the damage was too remote to warrant a recovery.* *See Fent v. Toledo, etc., R. Co. (59 Ill. 349), 14 Am. Rep. 13; Kellogg v. Chicago, etc., R. Co. (26 Wis. 223), 7 Am. Rep. 69, and note, 80; Webb v. Rome, etc., R. Co. (49 N. Y. 420), 10 Am. Rep. 389; Atchison, etc., R. Co. v. Stanford (12 Kans. 354), 15 Am. Rep. 362; Delaware, etc., R. Co. v. Calmon (39 N. J. 299), 23 Am. Rep. 214; Clemens v. Hannibal, etc. R. Co. (53 Mo. 366), 14 Am. Rep. 460. A Hoag v. Lake Shore, etc., Railroad Company. CTION for negligence. The opinion states the facts. A verdict was directed for defendants. Charles W. Mackey, for plaintiffs in error. McAlmont & Osborn, for defendant in error. PAXSON, J. This was an action on the case to recover compensation for certain property destroyed by fire, caused, as was alleged, by the negligence of the defendants. The facts, so far as they are essential to elucidate the point in controversy, are as follows: The plaintiffs were the occupiers of a piece of land situated within the limits of Oil City, on the western bank of Oil creek. The railroad of defendants is constructed along said creek, over the land of the plaintiffs and at the base of a high hill. On the afternoon of April 5, 1873, during a rain storm, there was a small slide of earth and rock from the hill-side down to and upon the railroad. About ten minutes prior to the accident, one of the defendants' engines had passed over the road in safety. At that time no slide had occurred. This engine was followed in a few minutes by another engine drawing a train of cars loaded with crude oil in bulk. The latter engine ran into the slide, was thrown off the track, ran on about one hundred to one hundred and fifty feet, when the tender, which was in front of the engine, was overturned into Oil creek; the engine itself was partly overturned; two or three oil cars became piled up on the track and burst. The oil took fire, was carried down the creek, then swollen by the rain, for several hundred feet, set fire to the property of the plaintiff and partly consumed it. The question of negligence in defendants' engineer in not seeing the obstruction and stopping his train before reaching it is not raised upon this record, and need not be discussed. The only question for our consideration is, whether the negligence of the defendants' servants was the proximate cause of the injury to the plaintiffs' property. The answer to the plaintiffs' third point, embraced in the second specification of error, raises this question distinctly. The court was asked to say: "That if the jury believe, from the evidence, that the accident complained of was the result of negligence on the part of the defendants, and that by reason of such negligence, the oil, ignited by the engine attached to the train, ran immediately down to Oil creek, where it was carried by the current in the space of a few minutes to the property of the Hoag v. Lake Shore, etc., Railroad Company. plaintiffs, when it set fire to and destroyed said property, the plaintiffs are entitled to recover, provided they did not in any manner contribute to said accident.' The court answered this point in the negative, and then instructed the jury that, as a matter of law, upon the facts in the case, the plaintiffs were not entitled to recover, which instruction is assigned here for error. It was strongly urged that the court erred in withdrawing the case from the jury, and the recent cases of Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith, 373; 21 Am. Rep. 100; and Raydure v. Knight, 2 W. N. C. 713, were cited as supporting this view. In the case first cited it was said by the chief justice, in delivering the opinion of the court, "We agree with the court below that the question of proximity was one of fact peculiarly for the jury. How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts which is immediately linked to the injury, necessarily must be determined by the jury. These facts or circumstances constitute the case, and depend upon the evidence. The jury must determine, therefore, whether the facts constitute a succession of events, so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause, the negligence of the defendants." The case of Raydure v. Knight was meagerly presented; the charge of the court was not sent up, and a majority of the court were of opinion that no sufficient cause for reversing the judgment had been shown. I am unable to see any special bearing this case has upon the question before us. The doctrine laid down in the Railroad Co. v. Hope, and to be gathered incidentally perhaps from Raydure v. Knight, is, that the question of proximate cause is to be decided by the jury upon all the facts in the case; that they are to ascertain the relation of one fact to another, and how far there is a continuation of the causation by which the result is linked to the cause by an unbroken chain of events, each one of which is the natural, foreseen, and necessary result of such cause. But it has never been held that, when the facts of a case have been ascertained, the court may not apply the law to the facts. This is done daily upon special verdicts and reserved points. Thus, in the Railroad Co. v. Kerr, 12 P. F. Smith, 353; 1 Am. Rep. 431, a case bearing a striking analogy to this, the court submitted the Hoag v. Lake Shore, etc., Railroad Company. question of negligence to the jury, but reserved the question of proximate cause upon the undisputed facts of the case. Of course this could not have been done if the facts were in dispute. A reserved point must be based upon facts admitted in the cause or found by the jury. In questions of negligence it has been repeatedly held that certain facts when established amount to negligence per se: Railroad Co. v. Stinger, 28 P. F. Smith, 219; McCully v. Clarke, 4 Wright, 399; Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith, 259; while in Raydure v. Knight, supra, the court below, in answer to the defendants' second point, instructed the jury that if certain facts were believed by them, the negligence complained of was the proximate cause of the injury to plaintiff's property. This ruling was affirmed by this court. I do not understand the decision in the Railroad Co. v. Hope to be in conflict with this view. It remains to apply the principle to the case before us. There is not a particle of conflict in the evidence, so far as it affects the question of proximate cause. This was doubtless the reason why the plaintiffs assumed the facts in their third point. They would not have been justified in doing so had not the facts been admitted, nor is it likely the learned judge would have answered it. We may, therefore, regard the plaintiff's third point as a prayer for instructions upon the undisputed facts. of the case. Can it be doubted that the court had the right to give a binding instruction? We think not. But one question remains. Was the negligence of the defendants' servants, in not seeing the land-slide, and stopping the train before reaching it, the proximate cause of the destruction of the plaintiff's property? We need not enter into an extended discussion of the delicate questions suggested by this inquiry. That has been done so fully in two of the cases cited as to render it unnecessary. A man's responsibility for his negligence and that of his servants must end somewhere. There is a possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reductio ad absurdum, so far as it applies to the practical business of life. We think this difficulty may be avoided by adhering to the principle substantially recognized in The Railroad Company v. Kerr, and The Railroad Company v. Hope, supra, that in determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence such a consequence as, under the surround Dorsey v. Abrams. ing circumstances of the case, might and ought to have been foreseen by the wrong-doer as likely to flow from his act. This is not a limitation of the maxim causa proxima non remota spectatur; it only affects its application. There may be cases to which such a rule would not apply, but this certainly is not one. It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiff's property as a consequence likely to flow from his negligence in not looking out and seeing the land-slide. The obstruction itself was unexpected. An engine had passed along within ten minutes, with a clear track. But the obstruction was there, and the tender struck it. The probable consequence of the collision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. Was he to anticipate the bursting of the oil-tanks; the oil taking fire; the burning oil running into and being carried down the stream; and the sudden rising of the waters of the stream by means of which, in part at least, the burning oil set fire to the plaintiff's building? This would be a severe rule to apply, and might have made the defendants responsible for the destruction of property for miles down Oil creek. The water was an intervening agent, that carried the fire, just as the air carried the sparks in the case of the Railroad Company v. Kerr. It is manifest that the negligence was the remote and not the proximate cause of the injury to the plaintiff's building. The learned judge ruled the case upon sound principles, and his judgment is affirmed. Judgment affirmed. DORSEY V. ABRAMS. (85 Penn. St. 299.) Negotiable paper — certification of check not in usual course of business. A. drew upon a bank in which he had no funds a check reciting that it was "to hold as collateral," etc. The cashier certified it. Held, that the bank was not bound by such certification, the check manifestly not being in the usual course of banking business. A SSUMPSIT. The opinion states the facts. Judgment for defendants. Corbett & Clark and Knox & Moffett, for plaintiff in error. VOL. XXVII - 83 |