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defendant could not have foreseen the particular result, he will be liable, if he could reasonably 394 have anticipated some injurious consequences. It is otherwise, however, where there is an intervening efficient cause, in itself sufficient to break the causal connection between the original wrong and the injury. On the subject of probable and remote cause, see Bishop on Noncontract Law, sec. 40-48, 454, 457.
In the case under consideration, the facts found specifically do not show that the injury occurred from any intervening cause that might have been reasonably anticipated or apprehended, any more than in the imaginary case of the injury to the passenger from the discharge of the gun. For aught that appears in the special verdict, the fire in the warehouse may have occurred from precisely such a cause as the one in the supposed case. Had it been shown that it originated either from sparks emitted by the appellee's locomotive, or from inflammable sources in the building, the case might be different, as such an occurrence might have been apprehended.
When it was shown that an injury from fire was a casualty for which the appellee, by its contract, was not liable, unless it occurred through the appellee's own negligence, the burden fell upon the appellant to show that the appellee's negligence caused the fire. The appellant having the burden of the issue upon this point, and there being no finding upon it, the presumption must attach that the fire originated from some cause other than the negligence of the appellee. The mere negligent omission of the appellee's duty in the transportation of the goods at an earlier period will not establish negligence in the origin of the fire.
What is the natural sequence of an act of negligence, has been the source of serious differences among judges and text-writers.
Upon the question as to whether a carrier is liable in damages who, by negligent delay, exposes goods in 395 transit to injury by the act of God or other cause for which he is not responsible, and which he could not naturally foresee, the courts of Pennsylvania, Massachusetts, Ohio, Iowa, Nebraska, and, perhaps, other state courts, as well as the supreme court of the United States, hold that in such cases no liability attaches, although the injury would not have occurred but for the delay; while in the courts of New York, New Hampshire, and Missouri the opposite doctrine is maintained: See Shearman and Redfield on Negligence, sec. 40, and cases cited.
The precise question here in dispute does not appear to have been decided by our supreme court.
The principle upon which we base our conclusion, however, has been repeatedly recognized by that tribunal, and nothing of a contrary nature has been declared. Thus, in Alexander v. New Castle, 115 Ind. 51, it was held that the municipality was not liable in damages for negligently leaving open a pit in a street into which one in charge of a prisoner was thrown by the latter, in an attempt to escape, and from which an injury was sustained, such negligence not being the proximate cause of the injury.
In Kistner v. Indianapolis, 100 Ind. 210, the action was for negligence on the part of the Union Railway Company in failing to provide and maintain suitable protection and safeguards at the point of crossing where the injury occurred, the deceased having been struck by a wagon endeavoring to avoid a moving train. It was held that the proximate cause of the decedent's death was the act of the driver of the wagon, and that the negligence of the Union Railway Company was not the proximate cause of such death: See, also, Spencer v. Ohio etc. Ry. Co., 130 Ind. 181; Pennsylvania Co. v. 396 Congdon, 134 Ind. 226, 39 Am. St, Rep. 251, and the cases cited in Davis v. Williams, 4 Ind. App. 487.
We are referred, by the appellant's learned counsel, to the case of Toledo etc. R. R. Co. v. Tapp, 6 Ind. App. 304, as declaring a doctrine at variance with that here followed. But there is no analogy between the cases upon the question here involved. The case cited was an action for damages for the breach of the carrier's common-law duty in failing to forward and deliver the baggage of the plaintiff, who was a passenger. By reason of the refusal to deliver the baggage after it had arrived, it was destroyed by fire with the warehouse or depot in which it had been locked up against the protest of the passenger. There the action was not upon the contract of shipment. Had the carrier shown that the fire originated from the act of God or some other excusable cause, it would not have been liable. Its failure to establish this, or any other fact proving freedom from negligence, was held to justify the court in rendering judgment upon the special verdict of the jury, and properly so, we think; while in the case at bar, the plaintiff's failure to establish that the fire resulted from the negligence of the carrier must be held to authorize the court to render judgment in favor of the appellee.
We think the proper statement of the rule that should govern in such cases as this, and certainly as favorable as it could be made upon the appellant's case is, that if the injury resulted from the negligent act or omission of the defendant, such act or omission will be deemed the proximate cause, unless the consequences were so unnatural and unusual that they could not, by the highest practical care, have been foreseen, and consequently provided against: Louisville etc. Ry. Co. v. Lucas, 119 Ind. 583.
Under the rule thus stated, the facts found fail to make 397 a case for the appellant. If the real cause of his loss, viz., the fire, was the result of negligence, he should pursue the remedy the law gives him against the culpable party. If the fire sprang from an innocent cause, and he has no remedy, the appellee should not, on this account, be made to suffer. While the rule may work a hardship in a particular case, this would be no justification for bending or relaxing it, and thus entailing greater hardships in other cases.
The court committed no error in rendering judgment upon the verdict in favor of the appellee.
CARRIERS-WHEN INSURERS OF GOODS.—The liability of a common carrier, except as lawfully limited by special contract, is that of an insurer against all losses, except those occasioned by the act of God, the public enemy, or the contributory negligence of the consignor: Alabama etc. R. R. Co. v. Thomas, 89 Ala. 294; 18 Am. St. Rep. 119; Adams Exp. Co. v. Darnell, 31 Ind. 20; 99 Am. Dec. 582, and note; Lewis v. Ludwick, 6 Cold. 368; 98 Am. Dec. 454, and note; Blumenthal v. Brainerd, 38 Vt. 402; 91 Am. Dec. 349, and note; Bennett v. Byram, 38 Miss. 17; 75 Am. Dec. 90, and note; Welsh y. Pittsburg etc. R. R. Co., 10 Ohio St. 65; 75 Am. Dec. 490, and note.
CARRIERS–CONTRACTS LIMITING LIABILITY.-A common carrier may limit his liability by express contract, except as to gross negligence, fraud, or wilful wrong of himself or his servants; Meuer v. Chicago etc. Ry. Co., 5 S. Dak. 568; 49 Am. St. Rep. 898, and note.
CARRIERS-LIMITING LIABILITY-BURDEN OF PROOF.When there is proof of the fact of injury to goods during transportation, but the manner of its occurrence does not import negligence on the part of the carrier, he is not liable if his contract is for a limited liability only, unless there is proof of negligence as an inducing cause of the injury, and the burden of making such proof is on the shipper: Buck v. Pennsylvania R. R. Co., 150 Pa. St. 170; 30 Am. St. Rep. 800. When a common carrier claims exemption from liability for injury to goods under a special contract, the burden of proof is upon him to show that any loss resulted from one or more of the excepted causes in the contract and without his fault: Johnson v. Alabama etc. Ry. Co., 69 Miss. 191; 30 Am. St. Rep. 534, and note; Terre Haute etc. R. R. Co. v. Sherwood, 132 Ind. 129; 32 Am. 8t. Rep. 239, and note.
CARRIERS-NEGLIGENCE-LIABILITY FOR GOODS DE. STROYED BY FIRE-DELAY IN FORWARDING.–This subject will be found treated in the extended note to Gilson V. Delaware etc. Canal Co., 36 Am. St. Rep. 838-840. | NEGLIGENCE-PROXIMATE CAUSE-WHAT IS.-To render negligence aggravated by no element of malice the proximate cause of an injury, it must be the natural and probable consequence of the negligence—such consequence as, under the surrounding circumstances, might and ought to have been seen by the wrongdoer: Yoders v. Amwell Tp., 172 Pa. St. 447; 51 Am. St. Rep. 750, and note. The consequence for which a negligent person is answerable must be the natural result of the alleged negligent act, or one which niight reasonably have been anticipated: Knox v. Eden Musee etc. Co., 148 N. Y. 441; 51 Am. St. Rep. 700, and note; see the extended note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 808.
GRAY V. ELZROTH.
(10 INDIANA APPEAIS, 587.) SLANDER-WORDS IMPUTING ADULTERY.-In Indlana, It is by statute actionable slander to charge a woman with adultery.
SLANDER-EVIDENCE IN MITIGATION OF DAMAGES.Rumors currently circulated and reported in the neighborhood where plaintiff lives are not admissible in evidence in mitigation of dam. ages in an action for slander.
SLANDER-EVIDENCE IN MITIGATION OF DAMAGES.In actions for slander, general rumors or general suspicions that plaintiff is guilty of the acts complained of, may be given in evi. dence in' mitigation of damages, as bearing upon the value of plaintill's character.
EVIDENCE-OBJECTIONS TO.-A proper question to which offered evidence would be responsive is essential to enable appellant to raise any question upon its admissibility.
SLANDER-IMPLIED MALICE-DAMAGES.–The speaking of the actionable words being shown, and their falsity admitted or proved, the law infers malice unless they were privileged, and the plaintiff then becomes entitled to compensatory damages at least, without regard to the existence of express malice, or malice in fact, If express malice is shown, plaintiff may recover punitive or exemplary damages.
SLANDER-PROOF OF WORDS CHARGED.-To sustain ap action for slander it is not required to prove the charge to have been made in the precise words alleged in the complaint, but it is necessary to prove that defendant spoke the words in substance, or substantially as alleged. It is not enough to prove the speaking of simi. lar or equivalent words.
NEW TRIAL-EXCEPTIONS TAKEN JOINTLY.-If an ex. ception is taken to several acts of the court jointly, or, if several acts of the court are assigned, as a cause for a new trial jointly and not severally, all of the acts complained of must be erroneous, in order to sustain the exception, or cause for a new trial.
J. C. Nelson, Q. A. Myers, D. D. Dykeman, W. T. Wilson, and G. C. Taber, for the appellant.
M. D. Fansler and M. F. Mahoney, for the appellee.
587 GAVIN, J. The appellee sued appellant for slander. In her complaint, she alleges that he charged her with having committed adultery with himself, with being a prostitute, and also imputed adultery to her by charging that her husband was not the father of any of her five children. A general and special denial formed the issues.
688 It is by statute actionable slander to charge a woman with adultery: Binford v. Young, 115 Ind. 174; Rev. Stats. 1894, secs 286.
Complaint is made of the rejection of appellant's offer to prove that for the last nine years "it has been currently circulated and reported in the neighborhood where this woman lived that these children are not the children of her husband, Elzroth.”
Counsel seek to maintain the admissibility of this evidence as in mitigation by the ruling of the supreme court in Blickenstaff v. Perrin, 27 Ind. 527, where it is said: “General rumors, or a general suspicion that the party is guilty of the acts imputed, may be given in evidence in mitigation of damages, but evidence of mere reports, rumors, or suspicions is not admissible.”
In that very case, where we find this general language upon which appellant relies, we find it also expressly decided that matter such as was here offered is not proper matter in mitigation. It was there held that the fact that it was, at the time of the speaking of the words,"currently reported in the neighborhood in which the plaintiff lived, and in adjacent parts of the country, that plaintiff had been in a house of bad reputation, to wit, a house of ill-fame in the city of Lafayette, in said state, which report had come to the ears of said defendant," and was by her repeated without malice, was not proper matter in litigation. Following the express decision of that case, there was no error in rejecting the offered evidence.
By another witness, Richard Coble, the appellant offered to prove that at the time of the alleged charge made in the complaint there was a general rumor, general suspicion in the neighborhood where this woman lived and had been for seven or eight years, that she was a prostitute, 589 a woman "guilty of associating with other men during the lifetime of her husband.”
So far as the offer covers the rumor that she was a prostitute, it is unavailing, for the reason that such a fact is not called for by the question asked. A proper question to which the offered evidence would be responsive was essential to enable appellant to raise any question upon it: Darnell v. Sallee, 7 Ind. App. 581; authorities cited in Benjamin v. McElwaine-Richards Co., 10 Ind. App. 76.
This leaves, then, available to the appellant that portion of the offer which relates to the report that she was "guilty of associating with other men during the lifetime of her husband.” Whatever wrong, if any, was involved in this report was fully covered by, and included in, the evidence which had been already given
AX. ST. REP., Voi. LIII.-26