FIFTH DEPARtment, DeceMBER TERM, 1889.

plank, two by ten, called a brace, which was nailed to the outer end of the projecting plank and extended down to about the middle of the sill, in a slanting position and nailed to a sill, and also to the upright at a point about two feet above the sill, so that the brace stood at an angle of about forty-five degrees. The floor of the platform consisted of three planks, each one foot wide, three inches thick and sixteen feet long; and they were laid so that each plank was supported at each end by one of the brackets and in the middle by two. The ends of the plank came together and did not overlap, so that each end of a plank extended beyond the bracket that supported it some six inches. Along the side of the trestle there was a plank road-way for the teams which came into the yard for coal, received direct from the car by means of the chute. On the afternoon of the accident, and just before it occurred, the plaintiff was in a box-car, the door of which was nearly over one of the bents, and was engaged in shoveling coal into the chute to load wagons. One Davis, who had purchased the coal, came into the yard with a wagon and drove upon the plank-way to receive a load of coal, and as he was driving under the chute the forward corner of his wagon struck the slanting brace nailed to the bent on the side opposite from himself and partially displaced the bracket from its fastenings, so that it did not afford any support for the ends of the plank which rested on the same. All the coal remaining in that car was loaded into this wagon. The plaintiff immediately left the car and came down on to the platform in the usual and customary way, and as he struck the outer plank the end of which had rested on the displaced bracket, it tipped and he fell to the ground beside the wagon and broke his leg. The plaintiff left the car and fell within ten or fifteen minutes after the bracket was displaced. Davis was a purchaser of the coal which was delivered to him from the car. The width of the plank-road-way for the use of the teams and wagons is not stated in the case, but it appears to have been constructed before the platform, and the ends of the plank towards the trestle extended under part, if not the whole, of the platform. The diagram printed with the case showed that the end of the chute extended beyond the outer edge of the platform; and how near to the slanting brace it was necessary to drive, so as to place the wagon in a proper position under the chute, cannot be

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correctly ascertained from the evidence. It appears that there was a free yard of considerable space in front of the trestle. When the bracket was struck, it was observed by a workman in the yard employed by the defendant, and the evidence tended to show that he informed the plaintiff before he stepped upon the platform that the same was broken and in a dangerous condition, but this the plaintiff denied, and that was an open question for the consideration of the jury. It did not distinctly appear whether the servant lastnamed was a fellow-servant of the plaintiff's or whether he represented the defendant in the management of its business at that place.

The duty which it is claimed that the defendant owed the plaintiff and neglected to perform was set out and charged in the complaint as follows: "That it was the duty of said defendant to see that the said platform or walk was built in a proper manner-safe and suitable manner so that its employees and servants engaged in and about the unloading of said cars could safely stand upon and walk along said platform or walk without danger or injury to life or limb; that said platform or walk was built in a careless, unskillful and negligent manner; that the persons employed in the building thereof were not carpenters or builders, and were utterly incompetent to do the said work in a safe and proper manner, as the defendant well knew; and that said platform or walk was so constructed as to be unsafe and dangerous for persons to stand upon and walk along without great danger to life or limb; that on the 13th day of November, 1885, it became necessary for the plaintiff in the course of his said employment to step upon said platform, and he did step and stand upon said platform, and while so standing upon the said platform, and without any fault or neglect on his part, and without any knowledge on his part of the unskillful construction and dangerous and unsafe condition of said platform, and by reason of the defective construction of said platform, as herein before stated, a portion of the said platform, upon which the plaintiff stood, broke and gave way, precipitating the said plaintiff to the earth and sidewalk below, thereby breaking his leg," etc.

There was no averment in the complaint that the platform became insecure and unsafe for use in consequence of the injury to the same caused by the act of Davis in displacing the bracket.

The defendant moved for a nonsuit, which was denied and an

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exception taken. Exceptions were taken to the charge as made, and to the refusal to charge as requested.

Spencer Clinton, for the appellants.

George T. Quinby, for the respondent.

BARKER, P. J.:

The defendant, as the master of the plaintiff, owed him the duty of keeping in a reasonably safe and secure condition the staging or platform constructed for the use of the men engaged in unloading the coal cars standing on the trestle. This the defendant admits. After reading the evidence with care and attention, we think it may be asserted, without successful contradiction, that if the bracket which supported the end of the plank at the point where the plaintiff stepped upon the platform in descending from the car had not been displaced by the act of Davis, in driving his wagon against it, the same would have been in a safe and secure condition for use, and the plaintiff would not have received the injuries of which he complains. This is the conclusion which we have reached after giving the case our best consideration. After the accident, the bracket was restored to its former position, without giving it additional strength, by adding new timbers, and the use of the platform, before and afterwards, demonstrates to our minds that it would not have given way at that time, except from the injury which happened to it immediately before it fell. It is not understood by us that the learned counsel for the respondent, in his oral or printed argument, contends to the contrary. It, therefore, clearly appears, and must be so held in disposing of the questions presented by this appeal, that the proximate cause of the plaintiff's injury was the act of Davis, who drove the wagon against the bracket and pushed it from its proper position and caused the platform to be in a dangerous condition until it was repaired.

It is contended by the defendant that it is not liable to the plaintiff for the injury which happened to him in consequence of the act of Davis, as he was not its servant nor subject to the orders of its manager; that, if he was guilty of negligence in breaking down the platform, the plaintiff must look to him for indemnity. In this connection we may state the plaintiff's position, which is, that the

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platform was weak and constructed in a faulty manner, and was exposed to the danger of being injured and broken down by teams and wagons used by those who came into the defendant's yard by its invitation to receive coal from the cars placed on the trestle; that the platform was erected for the purpose of facilitating the unloading of cars and transferring coal by means of the chute directly into the wagons of the buyers, to whom the same was delivered at the mouth of the chute, which was supported in part by the wooden horse which stood on the platform. To accomplish this the wagons, both empty and loaded, were necessarily driven so near the slanting braces that there was actual and constant danger of their coming in contact with the same and displacing the brackets, and thus leaving the platform in an unsafe and dangerous condition; and that the defendant was guilty of negligence in not constructing the platform with greater strength, so that it might receive without injury a jar or blow produced by being struck by a wagon, or in neglecting to guard the supports of the platform so that they could not be injured by the teams and wagons when driving to and from the coal chute.

The chief point made by the appellant for the purpose of securing a reversal of this said judgment is, that the displacing of the bracket by the act of Davis was the proximate cause of the accident, and not the faulty manner in which the platform was constructed, if it was faulty at all; and that such defect in construction was merely one of the incidents in the train of circumstances preceding and connected with the accident, but not, in legal contemplation, the cause of the same. From the evidence, as now presented, we think the disputation between the parties on the question of the defendant's negligence presents a question of fact to be determined in the same way as other questions of fact are disposed of in this class of cases. There is often much difficulty in ascertaining in cases as they arise the line between the proximate and the remote causes of a wrong for which a remedy is sought, but all the cases recognize the general rule to be that the law takes cognizance only of those consequences which are the natural and probable result of the wrong complained of, and which may reasonably be expected to result, under ordinary circumstances, from the misconduct or breach of duty charged upon the defendant. Wharton, in his work on Negligence (8 73), says:

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"Negligence is the juridical cause of an injury when it consists of such an act or omission on the part of a responsible human being, as in ordinary and natural sequence immediately results in such injury." Again, he says (§ 78): "Nor when we scrutinize the cases in which the test of reasonable expectation' is applied, do we find that the ' expectation' spoken of is anything more than an expectation that some such disaster as that under investigation will occur on the long run from a series of such negligences as those with which the defendant is charged."

Judge COOLEY, in his work on Torts (p. 69), states this principle of legal causation as follows:

"If the wrong and resulting damage are not known by common experience to be natural and usual in sequence, and the damage does not, according to the ordinary course of events follow from the wrong, then the wrong or damage are not sufficiently joined or concatenated as cause and effect to support an action." In Lowery v. The Western Union Telegraph Company (60 N. Y., 198). Judge ANDREWS, who prepared the opinion of the court, in commenting upon the rule, says: "The law does not undertake to hold a person who is chargeable with a breach of duty towards another, with all the possible consequences of his wrongful act. It, in general, takes cognizance only of those consequences which are the natural and probable result of the wrong complained of, and which, in the language of POLLOCK, C. B., in Rigby v. Hewitt (5 Exch., 240), may reasonably be expected to result, under ordinary circumstances, from the misconduct. Every injury is preceded by circumstances, if any one of which had been wanting the injury would not have happened. In some sense, therefore, each is a cause of the injury, but to fasten a legal responsibility for the injury upon every person whose wrongful act, however remote therefrom, had contributed to bring about a situation or condition which made the injury possible, would be an impracticable rule, and one which, if enforced, would, in most cases, inflict a punishment wholly disproportioned to the wrong. There is no serious conflict of authority in the statement of the general rule, that a wrong-doer is liable only for the natural and proximate consequences of his wrongful act."

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