Laidlaw v. Sage

This action was commenced May 26, 1892. Its purpose was to recover for personal injuries sustained by

The evidence disclosed that a stranger, whose name was subsequently found to be Rorcross, called at the defendant’s office December 4, 1891, at about ten minutes past twelve o’clock, said he desired to see the defendant in relation to some railroad bonds and had a letter of introduction from Hr. Rockefeller. When asked to send it to the defendant, he stated that he preferred to present it in person and that he only wanted to say two or three words. Upon receiving this message, the defendant stepped from his private office into the ante room, went to the window and looked into the lobby, where he saw Rorcross sitting upon a settee. At that time the defendant met the plaintiff, who said he had a message-from Hr. Bloódgood, and the defendant thereupon turned the knob of the door and the plaintiff passed into the ante room of the office. The former then spoke to Rorcross, who instantly arose, took his carpet bag in his left hand, and, approaching him, handed him a letter which was supposed to be from Hr. Rockefeller, which he took, opened and read. It was a typewritten communication, the substance of which was: “ The bag I hold in my hand contains tpn pounds of dynamite. If I drop this bag on the floor, the dynamite will explode and destroy this building in ruins, and kill every human being in the building. I demand $1,200,000, or I will drop the bag. Will you give it ? Yes or no ? ”

The defendant read the letter twice, folded it, handed it back to Rorcross, and then commenced parleying with him, stating that he had an engagement with two gentlemen, that he was short of time, and if it was going to take much time he wanted him to come later in the day. Rorcross, after a second, said: “Then, do I understand you to refuse my offer?”

After the explosion it was found that everything in the office was wrecked. The partitions, floors, joists, plaster, desks, tables, chairs and other furniture were destroyed, the window sashes and window frames were blown out, even in the private office; ISTorcross was blown to pieces, and Horton, one of the clerks in the defendant’s office, was hurled through the window to the street below, where he met his death. A steel safe which was locked and stood in an adjoining room was blown open, its contents scattered upon the floor with other debris, and every person who was in the room was either killed or seriously injured. Indeed, the explosion was so violent, so general and so destructive in its effect that it seems little less than miraculous that any person who was present should have escaped with his life. This portion of the transaction is undisputed in any essential or material particular.

The plaintiff claims that upon entering the office he passed the defendant and Horcross, who were conversing in the lobby near the door of the ante room ; that he entered the ante room,

Upon cross-examination he testified : “ I saw him (Mr. Sage) come within the range of my vision to my left. I can safely say that without looking at me he put his hand on my left shoulder, put his left hand on my left arm, and took my left hand in his left hand. It was not quite at that moment that he sat down on. the corner of the desk. He did not let go of my left hand with his left hand after taking my left hand. He did not take my left hand in both hands at that moment; he did a moment later, and then he sat down on the

He also gave evidence to the effect that he had previously testified that the defendant did not use any force upon him, and he never thought of such a thing as that until after the explosion; that he did not think he was conscious that the defendant was pulling him at the time, and he could not say that he ivas exactly conscious of any force of Mr. Sage’s hands in moving him; that he was moved easily and without resistance; that he moved voluntarily because he offered no resistance; that he did not think he was conscious of being pulled at the time, and that that testimony was true.

As to this part of the transaction the defendant testified that when he reached the corner of the table the plaintiff was about four feet from him towards the partition, and that they were in that position when the explosion occurred. He denied that he ever had his hands upon the person of the plaintiff in any manner whatever until after the explosion; testified that at the time the plaintiff was not between him and Horcross for an instant, and that he did not at any time intend or design interposing the body of the plaintiff between himself and Norcross; that he did not put himself behind the plaintiff, and that no portion of his body was behind the plaintiff; that he did not touch him at all, and made no such statement to Horcross as was testified to by the plaintiff; that, after the explosion, they were found thrown together, and

This case has been tried four times, and passed upon three times by the intermediate appellate tribunal. The history of this litigation has shown an evolution in the law held to be applicable to it which is somewhat unusual. Upon the first trial, the complaint was dismissed by the trial court upon the ground that the plaintiff had failed to establish any proper connection between the act of the defendant and the independent act of ISTorcross which caused the injury. In other words, it held that, under the principles of law applicable to the subject, the acts of the defendant were nqt shown to be the proximate cause of the plaintiff’s injury. That judgment was reversed by the General Term of the Supreme Court, which in effect held that no question of proximate cause was-involved; that if the defendant put his hand upon or touched the plaintiff, and caused him to change his position with an intent to shield himself, he was guilty of a wrongful act towards him; that if the plaintiff was injured by the happening of the catastrophe, the burden of proof was upon the defendant to establish the fact that his wrongful act did not in the slightest degree contribute to any part of the injury which the plaintiff sustained by reason of the explosion, and that it was not necessary for the plaintiff to show that he would not have been so severely injured if he had been left standing in his original position.

Upon the second trial the plaintiff had a verdict. The court seems to have charged the jury in accordance with the principles laid down by the General Term upon the first appeal. Upon that trial, however, the defendant’s counsel requested the court to charge: “If -the jury find from the evidence that the defendant did take the plaintiff and use him

Upon the third trial the jury disagreed.

Upon the last trial, which is now under review, the trial court disregarded the former decisions of the General Term, and charged that the measure of the plaintiff’s damages was the difference between those he actually sustained, and such as he would have received if he had not been interfered with, and that the burden of proving such damages was upon the plaintiff. It also charged that, if the defendant involuntarily put his hands upon the plaintiff in a moment of great excitement, confronted with immediate and serious danger, without meaning to interfere with him, he would not be responsible. But it submitted the question whether the act of the defendant was deliberate and intentional to the jury, calling its attention to the fact that the defendant testified that “ he was in perfect possession of his senses, recollected everything that was done, that everthing he did there was done intentionally,” and then charged that if, under those circumstances, he voluntarily put out his hand and touched the plaintiff, a cause of action was made out, and the plaintiff was entitled to a verdict. In this portion of its charge the court assumed, and stated to the jury, that the defendant testified that everything he did was done intentionally, as proof of his having intentionally interfered with the person of the plaintiff. The propriety of this portion of the charge will be subsequently considered.

On the trial George Baillard was called as a witness, and testified to having seen some one in O’Connell’s drugstore whom he believed to be the defendant; that some one stepped

When the plaintiff's evidence was closed the defendant moved for a nonsuit. Again, at the close of all the testimony, he moved for a nonsuit; that the plaintiff’s complaint be dismissed, and that a verdict be directed in his favor upon sufficient grounds so that the exceptions of the defendant to the denial of those motions fully raise all the questions which are involved or have been discussed upon this appeal. At the conclusion of the charge the defendant excepted to .portions of it, requested the court to charge certain propositions which were refused and by exceptions to those rulings again raised the questions involved. Therefore, in the consideration of the legal questions presented, it must be assumed that they were properly raised, not only by a motion to nonsuit and to dismiss the complaint, but also by motions to direct a verdict for the defendant and by exceptions to the charge and the refusal of the court to charge as requested.

Upon an appeal from the judgment entered upon the verdict rendered at the last trial, the Appellate Division obviously intended to follow the previous decisions of the General Term so far as they related to the plaintiff’s right of recovery, to the end that the question of the liability of the defendant, under the facts and circumstances proved, might be properly presented to this court, and did not assume the responsibility of passing upon the correctness of the previous decisions in that respect. It,' however, discussed many of the questions raised by the defendant’s counsel, and among other things attempted to show that there was sufficient evidence to justify

There are certain questions of law involved, which were discussed upon the argument, that we are called upon to decide. We have deemed it necessary to state the facts and history of this protracted litigation somewhat fully, to the end that the legal questions may be plainly presented and clearly understood in their connection with them.

The first question of law presented relates to our jurisdiction to hear and determine this appeal. The respondent contends that, inasmuch as the record does not show affirmatively that the justices of the Appellate Division were divided upon the question as to whether- there was evidence supporting, or tending to sustain, the verdict, that question, at least, cannot be considered by this court, and relies upon section 1337 of the Code of Civil Procedure as sustaining his position.

In examining the question of the appealability of this case and the questions which may be determined upon this appeal, it becomes necessary to consider the provisions of the Constitution and statutes, as well as the decisions of this court relating to the subject. Section nine of article six of the Constitution declares: “Ho unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals.” After the adoption of that provision the legislature amended section 190 of the Code of Civil Procedure so as to provide : “ From and after the last day of December, eighteen hundred and ninety-five, the jurisdiction of the court of appeals shall, in civil actions and proceedings, be confined to the review upon appeal of the actual determinations made by the appellate division of the supreme court in either of the following cases and no others : 1. Appeals may be taken as of right to said court, from judgments or orders finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance, judgment absolute shall be rendered against

Here, then, we find that both the Constitution and the statutes provide that no unanimous decision of the Appellate Division, that there is evidence supporting or tending to sustain a finding or verdict not directed, shall be reviewed by this court. But the provisions of section 190 are general and declare that appeals may be taken as of right to this court from judgments or orders finally determining actions or special proceedings. This confers' upon a party the absolute right to appeal in those cases, unless it falls within some of the limitations contained in the subsequent section. The question here presented is how or in what manner the fact that the case falls within some limitation, if it does, is to be made to appear. Inasmuch as section 190 in general terms confers the right of appeal, the question is if it is limited by some other provision of the statute, upon whom is the burden of showing that fact. It would seem that inasmuch as the appellant in this case was given the right of appeal in express terms, he might rely upon that general provision, and if it fell within any of the limitations of the statute and the respondent claimed that the appeal was not well taken, the burden of showing that fact rested upon him. In Kaplan v. N.

As bearing upon the contention of the respondent as to the appealability of this case, it may be properly added that here every point or question upon which the appellant relies was raised by an exception to the denial of a proper motion to direct a verdict for the defendant, by an exception to the charge of the court, to its refusal to charge as requested, or by some other ruling upon the trial to which a proper exception was taken. Therefore, in its farther examination all the questions of law which are presented by the appellant must be regarded as properly before us for consideration.

The primary question which lies at the foundation of the respondent’s right of recovery is whether there was sufficient evidence to justify the court in refusing to direct a verdict for the defendant, or in submitting to the jury the question of the defendant’s liability. This general question seems to depend for its solution upon several subordinate ones. These questions are, first, was there sufficient evidence that the defendant performed any act or was guilty of any omission which rendered him even technically liable to the plaintiff; second, if so, was the proof sufficient to justify the court in submitting to the jury the question of substantial damages; and, third, were the alleged acts of the defendant the proximate cause of the plaintiff’s injury ? A consideration of these questions in the order in which they are stated seems necessary to a proper determination of the original one.

First. That at the time of the occurrence which was the subject of this action, the defendant suddenly and unexpectedly found himself confronted by a terrible and impending danger which would naturally, if not necessarily, terrify and appall the most intrepid, is shown by the undisputed evidence. If with this awful peril before him, he maintained any great degree of self-control, it indicated a strength of nerve and personal bravery quite rare indeed.

That the duties and responsibilities of a person confronted with such a danger are different and unlike those which follow

The only witness whose testimony is relied upon to show any interference with the plaintiff by the defendant was the plaintiff himself. He not only had all the interest of a party to the action, but the undisputed proof disclosed that his memory had been very seriously impaired, and to such an extent that he was unable to remember from day to day or hour to hour what he was told to do, and that this condition of his mind continued from the time of the accident until

"The evidence relied upon by the plaintiff to show that there were these two defined lines was the location of the wounds upon the body of the plaintiff and the testimony of the witness Reeves. When we examine the evidence hearing upon the character and location of the plaintiff’s wounds, it falls far short of establishing any well-defined line of explosion. Nor do we think any such inference can be drawn from the situation as described by the plaintiff and other -witnesses. And when we examine the evidence of the witness Reeves, we find in it nothing to sustain the contention of the plaintiff. He testified that there were thirty-five to forty joists or beams, which ran north and south, that were injured, and that the breakage ran through the joists in a northeasterly direction.

In Baulec v. N. Y. & H. R. R. Co. ( 59 N. Y. 356 , 366) Judge Allen said: “It is not enough to authorize the submission of a question, as one of fact, to a jury, that there is some evidence. A scintilla of evidence, or a mere surmise, * * * would not justify the judge in leaving the case to the jury,” and in that case it was held that as “ at most the jury could only conjecture that the defendant might have been wanting in the care and caution proper to be exercised in such a case, * * * the case was properly withheld from the jury.”

In Pollock v. Pollock ( 71 N. Y. 137 , 153) Folgek, J., said : “ Insufficient evidence is, in the eye of the law, no evidence,” and then cited the language of Mauls, J., in Jewell

Again, in Bond v. Smith ( 113 N. Y. 378 , 385) Earl, J., stated the duties of the court in considering such a question as follows: “We have no right to guess that he was free from fault; it was incumbent upon the plaintiff to show it by a preponderance of evidence. She furnished the jury with nothing from which they could infer the freedom of the intestate from fault. She simply furnished them food for speculation, and that will not do for the basis of a verdict. The law demands proof, and not mere surmises. The authorities are ample to show in such a case the plaintiff should have been nonsuited,” citing Cordell v. N. Y. C. & H. R. R. R. Co. ( 75 N. Y. 330 ); Dubois v. City of Kingston ( 102 N. Y. 219 ).

In Pauley v. S. G. & L. Co. ( 131 N. Y. 90 , 98), which was an action for negligence by which it was claimed that the plaintiff’s intestate lost his life, Judge Finch, in delivering the opinion of the court, said : “ But the respondent and the General Term insist that some other theory may be adopted, and in order to do so, enter upon the realm of conjecture, and ask that a jury, in the utter absence of proof, may be allowed to guess that there was some negligence on the part of the defendant which might have tended to cause the death of the intestate. * * * What is claimed is that there is proof that .some of the operatives fled to this escape, but could not use it on account of the blinds, and we are asked to permit a jury to guess or con jecture that Pauley was one of these, without any proof of the fact, and in the face of the evidence that no one who did use it or approach it saw him at all,” and then adds : “We think the duty imposed by the statute was fairly and fully performed, and even if it was not, that we are not to resort to conjecture and permit a verdict to be based on bare possibilities alone. * * * A mere conjecture built upon a bare possibility will not suffice to transfer the money or property of one man to the possession and profit of another.

Again, in discussing this question in Linkhauf v. Lombard ( 137 N. Y. 417 , 425) Judge Gray, writing for this court, declared : “ To permit a jury to speculate and surmise upon a question of responsibility, is to withdraw from the litigant a safeguard intended for the protection of his rights. He is entitled to the judgiüent of the court upon questions, to which the character of the evidence admits of but one answer. Ho such possibilities of a failure of justice should be countenanced,” and then quotes from the opinion of Justice Clifford in Improvement Company v. Munson ( 14 Wall. 442 ) the following: “Hor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what was called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury; but .recent decisions of high authority have established a more reasonable rule; that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof rests,” and adds: “ The rule should be regarded as settled, under all the authorities, as well by the decisions of the courts of this state as by those of England, that, where there is no evidence upon an issue before the jury, or the weight of the evidence is so decidedly preponderating in favor of one side, that a verdict contrary to it would be set aside, it is the duty of the trial judge to non-suit, or to direct the verdict, as the case may require.”

In the case of Hemmens v. Nelson ( 138 N. Y. 517 ) this court again asserted the doctrine so clearly stated in the Limkhauf ease.

In discussing that question in Hudson v. R., W & O. R. R.

Third. We are next brought to the consideration of the question whether the alleged acts of the defendant were the proximate cause of the plaintiff’s injury. As has already been suggested, there is no allegation or proof which tends to show that the defendant was in any way responsible for the explosion, or that there was any connection whatever between the defendant’s acts and the explosion which followed. Indeed, the counsel for the respondent frankly states in his brief: “ It has never been claimed, either in the pleadings or in the argument, that Mr. Sage’s liability can be predicated on the fact that any act of his caused or invited a catastrophe, or that he used defiant or injudicious language.”. Nor does the respondent claim that the defendant was in any way responsible, directly or indirectly, for the explosion itself. Therefore, if the explosion was the proximate cause of the plaintiff’s injury, the defendant cannot be held responsible. While the learned General Term stated that there was no question of proximate cause in this case, we are unable to indorse that statement or to understand the basis for it. The doctrine of proximate cause is a fundamental rule of the law of damages, to the effect that damages are to be allowed in general only for the proximate consequences of the wrong, although sometimes the question of proximate cause is applied to consequential damages for the breach of a contract, as well as to damages for negligence or tort. That the principle of proximate cause is applicable in an action for tort seems to be established by all the authorities, and we find none holding a contraiy doctrine. While there may be a degree of uncertainty as to the plain signification of the term “proximate cause,” or rather in its application to various cases, still in this case there can be no question as to what was the proximate and immediate cause of the plaintiff’s injury. Bishop, in his work on Non-Contract Law (§ 42), in discussing this question, after remarking as to the uncertainty with which the term “ proximate cause ” may have been used and applied, and after defin

In Shearman & Redfield on the Law of Negligence (§ 26) it is said : “ The breach of duty upon which an action is brought must be not only the cause but the proximate cause of the damage to the plaintiff. * * * The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.”

Wharton thus discusses the question: “ Supposing that if it had not been for the intervention of a responsible third party the defendant’s negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff ? This question must be answered in the negative for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter as to which I am not contractually bound. Another person, moving independently, comes in and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor and insulates my negligence so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.” (Wharton on Negligence, § 134.)

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 a 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 conclusion can be legitimately drawn. In other words, a remote cause is a cause the connection between

In Marble v. City of Worcester ( 4 Gray, 396 ) Chief Justice Shaw said: “ On account of the difficulty in unraveling a combination of causes, and of tracing each result, as a matter of fact, to its true, real and efficient cause, the law has adopted the rule before stated, of regarding- the proximate, and not the remote cause of the occurrence which is the subject of inquiry.”

In Crain v. Petrie ( 6 Hill, 522 , 524) the question of special damages was involved, and, consequently, the question of proximate cause; that is, whether the special damages were the legal and natural consequences of the wrong complained of. Nelson, Ch. J., in that case said : “To maintain a claim for special damages they must appear to be the legal and natural consequences arising from the tort, and not from the wrongful act of a third party remotely induced thereby. In other words, t-he damages must proceed wholly and exclusively from the injury complained of.”

In Milwaukee & Saint Paul Railway Co. v. Kellogg ( 94 U. S. 469 ) it was said: “ The inquiiy must, therefore,always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.”

In Hofnagle v. N. Y. C. & H. R. R. R. Co. ( 55 N. Y. 612 ) it was held that the act of one person cannot be said to

Another principle of proximate cause which seems to be well established is that an accident or injury cannot be attributed to a cause unless, without its operation, it would not have happened. (Ring v. City of Cohoes, 77 N. Y. 83 ; Taylor v. City of Yonkers, 105 N. Y. 202 ; Ayres v. Village of Hammondsport, 130 N. Y. 665 ; Grant v. Pa. & N. Y. Canal & R. R. Co., 133 N. Y. 657 .) When damages claimed in an action are occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and .the jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the act of the defendant is not sufficient. (Searles v. Manhattan Railway Co., 101 N. Y. 662 .) The plaintiff must fail if the evidence does not show that the injury was the result of some cause for which the defendant is responsible, and where the proof is by circumstances, the circumstances themselves must be shown and not left to rest in conjecture, and when shown it must appear that the inference sought is the only one which can fairly and reasonably be drawn from the facts. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 94 .)

When we apply to the undisputed facts of this case these rules relating to proximate cause, it becomes quite manifest that the judgment in this action cannot be upheld. All the injuries which the plaintiff sustained were caused directly and immediately by the act of 27orcross in exploding the dynamite. That was clearly the proximate, and we think the only, cause of the plaintiff’s injury. It was the only efficient cause, as, confessedly, without the explosion the plaintiff would not have been injured, and under no circumstances can it be properly said that the act of the defendent in changing the plaintiff’s position a few 'inches to the left of where he previously stood caused the explosion or -occasioned the catastrophe. Surely that was not an act. without which the expío

Another ground upon which the defendant seeks to sustain this appeal is that the court erred in refusing to strike out and in not instructing the jury to disregard the evidence of George Baillard, to which we have already referred. While it is possible that there was sufficient proof to justify the jury in finding that the “ elderly stranger ” to whom the witness referred was the defendant, still it is obvious that the evidence admitted was so general and inconclusive as to render it only conjectural as to whether it related to the subject at issue at all. It was that the witness understood this “ elderly stranger ” to say something about being protected — about a protection he had had from the éxplosion. As to the nature of the protection, its extent, whether by physical matter, or an overruling Providence, or a protection of some other character, nothing was attempted to be shown. It seems to us quite clear that no such uncertain statement should have been submitted to a jury or permitted to become the basis of a verdict involving the rights of parties. It was too uncertain, indefinite and vague to be permitted to serve any such purpose.

Our attention is also called to various rulings of the trial court which arose upon the cross-examination of the defendant. His cross examination was a severe and rigorous one.

Again, we find rulings which were made on the cross-examination of the defendant in regard to the article in the Hew York World, which we think cannot be upheld.

It has ever been the theory of our government and a cardinal principle of our jurisprudence that the rich and poor stand alike in courts of justice, and that neither- the wealth of the one nor the poverty of the other shall be permitted to affect the administration of the law. Evidence of the wealth of a party is never admissible, directly or otherwise, unless in those exceptional cases where position or wealth is necessarily involved in determining the damages sustained. As to this general proposition there can be no doubt, and no authorities need be cited, notwithstanding this well-established principle, the plaintiff was permitted to show by the defendant upon his cross-examination substantially, or at least to a great extent, the amount of, property possessed by him, its character and his business. He was permitted to show the number of railroads the defendant operated, the banks in which he was a director, that he dealt in stocks, that he loaned money, and other details of his affairs. • We think much of this evidence was improperly received, and that the exceptions were valid. But we deem it both unnecessary and unwise to extend this necessarily protracted opinion by either discussing those questions or considering the various other exceptions contained in the record which present questions that are serious, if not fatal, to this

It is impossible to consider the plaintiff’s injuries without a feeling of profound sympathy. His misfortune was a severe one, but sympathy, although one of the noblest sentiments of our nature, which brings its reward to both the subject and actor, has no proper place in the administration of the law. It is properly based upon moral or charitable considerations alone, and neither courts nor juries are justified in yielding to its influence in the discharge of their important and responsible duties. If permitted to make it the basis of transferring the property of one party to another,-great injustice would be done, the foundation of the law disturbed and anarchy result. Hence, every proper consideration requires us to disregard our sympathy and decide the questions of law presented according to the well-established rules governing them.

The judgments of the Appellate Division and of the trial court should be reversed and a new trial granted, with costs to abide the event.

All concur, except Parker, Oh. J., not voting, and Gray, J., absent.

Judgments reversed, etc.