Negligence, whether as a cause of ac-tle the plaintiff to recover; that is, that tion or as a defense, must be the proxi- the injury sustained was such as might mate cause of the injury complained of. Carter v. Chambers, 79 Ala. 223. Defendant's negligence must have proximately contributed to the injury, in that it would not have happened except for such negligence, in order to be actionable. Weatherly v. Nashville, C. & St. L. Ry., 51 So. 959, 166 Ala. 575. In an action for negligence, the legal relation of cause and effect must be established between the particular negligence alleged and the injuries suffered. Malcomb v. Louisville & N. R. Co., 46 So. 768, 155 Ala. 337. To constitute actionable negligence, there must be causal connection between the negligence complained of and the injuries suffered, and for the negligence to be the proximate cause of the injury it must first appear that there was a duty owing from defendant to plaintiff; that there was a negligent breach; and that the injury resulted as a direct consequence of such breach. Virginia-Carolina Chemical Co. v. Mayson, 7 Ala. App. 588, 62 So. 253. As was said in Western Railway v. Mutch, 97 Ala. 194, 11 So. 894, quoting from 16 Am. & Eng. Ency. Law, p. 436: "To constitute actionable negligence, there must be not only casual connection between the negligence complained of and the injury suffered, but the connection must be by natural and unbroken sequence, without intervening efficient causes; so that, but for the negligence of the defendant, the injury would not have occurred. It must not only be a cause, but it must be the proximate—that is, the direct and immediate, efficient-cause of the injury." Decatur, etc., Mfg. Co. v. Mehaffey, 128 Ala. 242, 29 So. 646; Louisville, etc., R. Co. v. Quick, 125 Ala. 553, 28 So. 14; Reiter-Conley Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280, 288; Richards v. SlossSheffield, etc., Iron Co., 146 Ala. 254, 41 So. 288; Creola Lumber Co. V. Mills, 149 Ala. 474, 42 So. 1019, 1023; Alabama, etc., R. Co. v. Arnold, 80 Ala. 600, 2 So. 337; Malcomb v. Louisville, etc., R. Co., 155 Ala. 337, 46 So. 768. The negligence of the defendant must be the proximate cause of the injury, to enti SO have been reasonably anticipated in the ordinary and usual course of events. No difficulty arises when the damage directly follows the wrong; when they are contemporaneous that no proximately time or occasion is afforded for the operation of another instrumentality. It ordinarily arises when there is an intervening cause, or several causes contributing to the result. Generally, in such case, the law will attribute the injury to the last cause, when it follows in immediate succession. But the agency in point of time is not regarded in every case as the proximate cause, in contemplation of law. The injury will be referred to the nearest and immediate agency only when it is independent of the original act or conduct of the defendant. If the intervening causes are merely incidental, having been set in motion by the first cause, and are not new and independent forces sufficient of themselves to cause the disaster, the law passes these, and traces the injury to the wrongful act which puts them in operation. The principle is that, if the injury is produced by the wrongful act during the continuance of its causation, it will be regarded as the proximate cause; but as too remote, though furnishing the occasion, when the injury occurs after the act is completed and terminated, by the intervention of another and independent cause. "On the intervention of other agencies, the inquiry should be, is the original wrongful act an antecedent, efficient, and dominant cause, which put the other causes in operation?" Cooley, Torts, 70; East Tennessee, etc., R. Co. v. Lockhart, 79 Ala. 315; Alabama, etc., R. Co. v. Arnold, 80 Ala. 600, 2 So. 337, 340. See post, "Nature and Extent of Damage," § 28. Violation of Statute. See post, "Wrongful or Illegal Acts or Conduct," § 35. Contributory Negligence as Proximate Cause of Injury. See post, "Nature and Elements of Contributory Negligence in General," § 29; "Contributory Negligence as Proximate Cause of Injury," § 38. Imputed Negligence.-See post, "Imputation of Negligence of Another in General," § 45. § 25. Remote Consequences. A wrongdoer is responsible only for the proximate consequences of his act. Central of Georgia Ry. Co. v. Sigma Lumber Co., 170 Ala. 627, 54 So. 205. § 26. Concurrent Causes. there must be not only causal connection between the negligence complained of and the injury suffered, but the connection must be by a natural and unbroken sequence without intervening sufficient cause so that, but for the negligence, the injury would have occurred, and the neg As to effect of concurring negligence ligence must be the direct and immediate on liability for death, see the title HOMICIDE. "If the defendant's wrongful act is one of two or more concurrent efficient causes efficient cause of the injury. Tobler v. Pioneer Mining & Mfg. Co., 52 So. 86, 166 Ala. 482. "If a new force or power intervenes, other than plaintiff's fault, which cooper-sufficient of itself to stand as the cause of ate directly to produce the result, this, the misfortune, the other must be considunder the authorities, is all that is req- ered as too remote." But in a suit for the uisite for fastening liability on him." Western Railway v. Sistrunk, 85 Ala. 352, that, if the "result" was the necessary and recovery of damages, where it is shown 5 So. 79; Home Te!. Co. v. Fields, 150 Ala. inevitable effect of a first cause, and a 306, 43 So. 711, 714. cient of itself to produce the effect, and new independent force intervened suffionly hastened the result, the first cause is not too remote. In such cases both causes necessarily contribute to the result. Thompson v. Louisville, etc., R. Co., As observed in the case of Thompson v. Louisville, etc., R. Co., 91 Ala. 496, 8 So. 406: "If the original wrong becomes injurious only in consequence of some distinct wrongful act or omission by an other, the injury shall be imputed to the last wrong. But, if the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person, and does actually result in injury, through the in tervention of causes which are not wrongful, the injury shall be referred to 91 Ala. 496, 8 So. 406, 407. It is no defense to an action for perdefendant railroad company that plaintiff, sonal injuries resulting from a fire set by a child five years of age, was safely rescued from the burning house, and was inBirjured after returning to the inside. mingham Ry., Light & Power Co. v. Hinton, 37 So. 635, 141 Ala. 606. Where a person's injuries were received from a fire negligently set by a railway company, the chain of causation between its negligence and the injuries was not broken by the person's removal from the building set on fire just prior to her return to the building, after which the injuries were received. Birmingham Ry., Light & Power Co. v. Hinton, 40 So. 988, 146 Ala. 273. § 28. Nature and Extent of Damage. If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate "The logical rule in this connection, the consequence, the law will refer the dam- rule of common sense and human expeage to the last proximate cause, and re-rience as well (if, indeed, there can be a fuse to trace it to that which was more difference between a logical doctrine and remote. Louisville, etc., R. Co. v. Quick, 125 Ala. 553, 28 So. 14; Reiter-Conley Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280, 288; Mobile, etc., R. Co. v. Christian Moerlein Brew. Co., 146 Ala. 404, 41 So. 17. To constitute one of common sense and experience, as some authorities appear to hold), is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumactionable negligence, stances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind. 1 Shear. & R. Neg. § 29." Armstrong v. Montgomery St. R. Co., 123 Ala. 233, 26 So. 349, 352; Louisville, etc., R. Co. v. Pearce, 142 Ala. 680, 39 So. 72, 74; Mobile, etc., R. Co. v. Christian Moerlein Brew. Co., 146 Ala. 404, 41 So. 17; Kansas, etc., R. Co. v. Foster, 134 Ala. 244, 32 So. 773. Negligence resulting in an injury to decedent's finger, which produced blood poisoning, causing his death, is the proximate cause of such death. Armstrong v. Montgomery St. R. Co., 26 So. 349, 123 Ala. 233. Amer. & Eng. Enc. Law, p. 18. McCarthy v. Louisville, etc., R. Co., 102 Ala. 193, 14 So. 370, 371; Birmingham R., etc., Co. v. Pinkard, 124 Ala. 372, 26 So. 880, 881. If from "inadvertence, forgetfulness, inattention, or absent-mindedness," a party voluntarily assumes a position obviously dangerous, without any necessity for it, but as a place of comfort and convenience, and from this cause was injured, he would be guilty of contributory negligence. Schlaff v. Louisville, etc., R. Co., 100 Ala. 377, 14 So. 105, 109. Heedlessness is not the equivalent of contributory negligence. Decatur Light, Power & Fuel Co. v. Newsom, 179 Ala. 127, 59 So. 615. The doctrine of "heedlessness" and "inattention," as generally understood, or Though intestate's death was directly caused by blood poisoning resulting from her miscarriage if the miscarriage re-neglect to use reasonable care, does not sulted from defendant's negligence, he was liable. Birmingham Ry., Light & Power Co. v. Hinton, 48 So. 546, 158 Ala. 470, cited in note in 23 L. R. A., N. S., 346. Where plaintiff in an action for dam-cite attention or care. Birmingham v. ages resulting from a broken leg became afflicted with nausea before he was able to arise when a person has the legal right to assume that he may proceed with safety, and no fact or circumstance is brought to his notice, calculated to ex Tayloe, 105 Ala. 170, 16 So. 576. Where a person has knowledge of the dangerous conditions or has been warned of them, the fact that through inattention, sit up, and, upon turning partially over in bed to avoid vomiting on the bed, rebroke the leg, the accident causing orig- thoughtlessness or forgetfulness he is ininal fracture was the proximate cause of the rebreakage. Western Railway V. Mutch, 97 Ala. 194, 11 So. 894; Thompson v. Louisville, etc., R. Co., 91 Ala. 496, 8 So. 406; Postal Tel. Cable Co. v. Hulsey, 132 Ala. 444, 31 So. 527, 533, cited in notes on this point in 18 L. R. A., N. S., 641; 18 L. R. A., N. S., 641. jured thereby constitutes contributory negligence preventing a recovery. Louisville, etc., R. Co. v. Hall, 87 Ala. 708, 6 So. 277; Wood v. Richmond, etc., R. Co., 100 Ala. 660, 13 So. 552. See, also, Alabama, etc., R. Co. v. Arnold, 84 Ala. 159, 4 So. 359; Harold v. Jones, 86 Ala. 274, 5 So. 438. A person may unconsciously place himself in such a position as to be guilty of contributory negligence. It is not the fact that he is unconsciously in such a position but the circumstances attendant upon his getting in such a position before he became unconscious that must determine whether or not he was guilty of contributory negligence. Louisville, etc., R. Co. v. Thornton, 117 Ala. 274, 23 So. 778. § 29. Nature and Elements of Contributory Negligence in General. There must always be negligence on the part of a defendant, or else it can not be said that a plaintiff has been guilty of contributory negligence; or, in other words, "there can be no contributory negligence on the part of a plaintiff except in cases where there has been negligence on the part of the defendant. Contributory negligence exists only when the negli- § 30. Duty to Observe and Avoid Danger. gence of both parties has combined and One sustaining an injury from a known concurred in producing the injury." 4 peril to which he voluntarily continued 10 Ala Dig-37 Ordinary Prudence. See post, “Care Required as against Negligence of Another," § 31. to expose himself may not recover there- party injured, by the exercise of ordifor. Republic Iron & Steel Co. v. Fuller, nary care under the circumstances, 6 Ala. App. 448, 60 So. 475. Where a person voluntarily and wrongfully places himself in a dangerous position, thereby assuming its risks, and fails to use the proper means to discover the peril, or, on discovering it, fails to make exertions to extricate himself, he is guilty of contributory negligence. Frazer 2. South, etc., R. Co., 81 Ala. 185, 1 So. 85, cited in notes in 69 L. R. A. 549, 550, 553. No man should put himself in peril; and, if he negligently do so, the duty of active effort to avert injury is as binding on him as is the defendant's duty to do all in its power to extricate him. If he fails in this, when such effort would probably save him from harm, he can not be heard to complain that the defendant failed to do for him what he neglected to do for himself. Louisville, etc., R. Co. v. Crawford, 89 Ala. 240, 8 So. 243, 245. A person has a right to assume that one will avoid ordinary danger and use precautions in the face of impending danger. Burson v. Louisville, etc., R. Co., 116 Ala. 198, 22 So. 457. might have avoided the consequences of the defendant's negligence, but did not, the case is one of mutual fault, and the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof." Carter v. Chambers, 79 Ala. 223, 230. or Question for Jury.-If, by the fact that defendant held out the place as safe and suitable, by the plaintiff's familiarity with the situation, and by its constant and actual use, he was induced to bona fide believe that he could pass with safety, using due care in walking, and he did use such care, he can not be charged with having unnecessarily exposed himself to danger, with a want of ordinary care and caution. On the other hand, if the plaintiff knew that it was dangerous to attempt to pass in the dark, and did not honestly believe that he could do SO without accident or injury, and there was a light convenient, of which he would have had the benefit, and he omitted to avail himself of its advanGuest or Trespasser.-One acting on tage, these ar circumstances which may invitation has the right to presume, from be considered in determining whether knowledge of that fact, that the premises the plaintiff unnecessarily exposed himhe is invited to use are kept reasonably self to danger. But, these material safe, and he is not required to be careful facts resting in inference, the question to keep on the lookout for pitfalls; but one acting without knowledge of the invitation is negligent ordinarily in presuming safety in premises of the nature and condition of which he was ignorant, especially at night, and a reasonably prudent man will exercise more care in using premises, where he is ignorant of any invitation to use them, than he will be if he knows that he is invited to use them. Alabama Great Southern R. Co. v. Godfrey, 47 So. 185, 156 Ala. 202. of contributory negligence should be submitted to the jury. Alabama, etc., R. Co. v. Arnold, 80 Ala. 600, 2 So. 337, 342. § 32. Choice of Alternative Involving Risk. Where there was presented to the plaintiff the choice of two ways of performing a duty-one entirely safe, the other obviously and greatly dangerous, the law is well settled, that upon this state of case the injured party is guilty § 31. Care Required as against Negli- of negligence which will bar a recovery gence of Another. The test of contributory negligence is what ordinary prudence would suggest. Simmerman v. Hills Creek Coal Co., 170 Ala. 553, 54 So. 426. In Cooley on Torts, 674, speaking of contributory negligence, the author says: "The general result of the authorities seems to be, that if the plaintiff, or by him, if he adopts the dangerous way, or even the more dangerous way, where both are more or less dangerous, in discharging the service required of him. Mobile, etc., R. Co. v. Holborn, 84 Ala. 133, 137, 4 So. 146; Highland Ave., etc., R. Co. v. Walters, 91 Ala. 435, 8 So. 357; Louisville, etc., R. Co. v. Orr, 91 Ala. 548, 8 So. 360; Mobile, etc., R. Co. v. George, 94 Ala. 199, 10 So. 145; S. C., 109 Ala. 245, 19 So. 784, 790. See, also, Warden v. Louisville, etc., R. Co., 94 Ala. 277, 10 So. 276. The fact that the party was injured because of the way selected, when, if he had selected the other way, the injury would have been avoided, alone, does not fix upon him contributory negligence. The result is not the true test. If a party selects a dangerous way to perform a duty, when there is a safe way, knowing the way selected to be dangerous, or if the danger "is apparent" or "obivious," then he assumes the risk, and is guilty of contributory negligence. Louisville, etc., R. Co. v. Orr, 91 Ala. 548, 8 So. 360; Tennessee, etc., R. Co. v. Herndon, 100 Ala. 451, 14 So. 287, 290. By Employee-Obeying Order of Superior. See the title MASTER AND SERVANT. § 33. Acts in Emergencies. See ante, "Acts in Emergencies," § 9. One exposed to a danger which, by reason of another's negligence, is enhanced is not necessarily guilty of contributory negligence because he does not exercise the best judgment in taking steps for his safety, but his conduct must be weighed in the light of the surrounding circumstances at the time, and he need only exercise such reasonable care as would be expected of a prudent man under similar conditions. Republic Iron, etc., Co. v. Fuller, 6 Ala. App. 448, 60 So. 475; Holland v. Tennessee, etc., R. Co., 91 Ala. 444, 8 So. 524; Richmond, etc., R. Co. v. Farmer, 97 Ala. 141, 12 So. 86, 88; Alabama, etc., R. Co. v. Fulton, 144 Ala. 332, 39 So. 282, cited in note in 37 L. R. A., N. S., 49. mind, occasioned by circumstances of excitement, confusion and danger brought about by the negligent acts of the defendants, should not be imputed to the plaintiff as a fault; nor could it be regarded in any sense as misconduct, if, under like circumstances, one should mistake the best means of safety, and lose his life in the effort to preserve it. Cook v. Parham, 24 Ala. 21, 35, cited in note in 37 L. R. A., N. S., 50. Plaintiff, being suddenly placed in a position of great and unexpected dan-' ger, was not negligent, as a matter of law, in going in an unsafe instead of a safe direction. Postal Tel. Cable Co. v. Hulsey, 132 Ala. 444, 31 So. 527. Placing Self in Dangerous Position.The rule that one who acts when unwarned peril surrounds him is not chargeable with contributory negligence as a matter of law can not be invoked by one who wrongfully and voluntarily puts himself in a dangerous position." Birmingham Ry., Light & Power Co. v. Fox, 174 Ala. 657, 56 So. 1013. See also, McCauley v. Tennessee, etc., R. Co., 93 Ala. 356, 9 So. 611; Central, etc., R. Co. v. Forshee, 125 Ala. 199, 27 So. 1006; Kansas, etc., R. Co. v. Thornhill, 141 Ala. 215, 37 So. 412. As Question for Jury.-As a rule, one who suddenly acts wildly and madly, when unwarned peril surrounds him, is not as matter of law chargeable with contributory negligence for failing to exercise the obligations of care and prudence imposed upon a prudent man under normal and ordinary conditions as instinct would prompt him to use diligence to save his life or insure his safety, and the law wisely leaves it to the jury to determine whether or not his conduct under such circumstances amounts to negligence. Louisville, etc., R. Co. v. Thornton, 117 Ala. 274, 23 So. 778; Richmond, etc., R. Co. v. Farmer, 97 Ala. 141, 12 So. 86; Birmingham R., etc., Co. v. Fox, 174 Ala. 657, 56 So. 1013, 1019; Louisville, etc., R. Co. v. Stewart, 128 Ala. 313, 29 So. 562. The test in this connection is not always found in the failure to exercise the best judgment, or use the wisest precautions; the influences which ordinarily govern human action are to be considered, and what would under some circumstances be a want of due care would not be such under others. Montgomery, etc., R. Co. v. Stewart, 91 Ala. | Ala. 533, the court quoted with approval 421, 8 So. 708, 711. That death may have been the result of fright, or the want of presence of In Cook v. Central R., etc., Co., 67 what is said in Whart. Neg. § 304, viz.: "As a rule, therefore, we may say that a person is not chargeable with con |