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Langendorf, 48 Ohio St. 316, 29 Am. St. Rep. 553, 28 N. E. 172.

But whether the benefit of this rule is to be extended to one injured in an effort to save his own or another's property, exposed to danger by the wrongdoing or negligence of a third party, is a question that has provoked much difference of judicial opinion. Opposed to this extension are found the cases of Eckert v. Long Island R. R. Co., 43 N. Y. 502, 3 Am. Rep. 721; Morris v. Lake Shore etc. Ry. Co., 148 N. Y. 186, 42 N. E. 579; Condiff v. Kansas etc. R. R. Co., 45 Kan. 260, 25 Pac. 562; Cook v. Johnston, 58 Mich. 437, 55 Am. Rep. 703, 25 N. W. 388; Seale v. Gulf etc. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602. On the other hand, in Berg v. Great Northern Ry. Co., 70 Minn. 272, 68 Am. St. Rep. 524, 73 N. W. 648, Liming v. Illinois Cent. R. R. Co., 81 Iowa, 246, 47 N. W. 66, Pullman Car Co. v. Laack, 143 Ill, 242, 32 N. E. 285, Rexter v. Starin, 73 N. Y. 601, and Wasmer v. Delaware Co., 80 N. Y. 212, 36 Am. Rep. 608, the rule has been extended so as to give the party injured redress where his effort to save property has been such as a reasonably prudent man would have made under similar circumstances.

In his charge to the jury the trial judge gave the 337 admin. istrator of the deceased the benefit of the rule as announced in Berg v. Great Northern Ry. Co., 70 Minn. 272, 68 Am. St. Rep. 524, 73 N. W. 648, and the other like cases. We do not, however, feel called on to choose determinately between the divergent decisions on this point, and certainly we are not prepared to say the trial judge was in error. But granting that he laid down the law correctly, the question recurs, Was the injury received by Palmer, which resulted in his death, the proximate result of the negligence of the plaintiff in error?

An examination of the cases will confirm the statement of Mr. Archibald Watson of the New York bar, in his recent and very valuable work, entitled “Damages for Personal Injuries,” that “no branch of the subject of personal injuries presents greater difficulty than the determination of liabilty for a specific loss, with reference to its naturalness and proximity as a consequence of the wrongful act complained of.”

So great has this uncertainty been felt, that many courts have reached the conclusion that, at last, “to a sound judgment must be left each particular case”: Harrison v. Berkley, 1 Strob. 547, 47 Am. Dec. 578. The same view was expressed by the supreme court of the United States in Insurance Co.

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v. Tweed, 7 Wall. 49, in the following language: "We have had cited to us a general review of the doctrine of proximate and remote causes, as it has arisen and been decided by the courts in a great variety of cases. It would be an unprofitable labor to enter into an 338 examination of these cases. If we could deduce from them the best possible expression of the rule, it would remain, after all, to decide each case largely upon the special facts belonging to it, and often upon the nicest discrimination."

While there is much of practical truth in these statements, and the most careful study of the best text-books and opinions of courts will fail to discover an infallible guide, vet it will be found that all agree on certain general formulas or rules, which, though difficult of application in some, are of value is all, cases involving this question of proximate or remote cause.

In Deming v. Cotton Press Co., 90 Tenn. 353, 17 S. W. 99. this court said: "The proximate cause of an injury may,

in general, be stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, which, had it not happened, the injury would not have been inflicted." This definition was approved in the later cases of Telegraph-Cable Co. v. Zopfi

, 93 Tenn. 369, 24 S. W. 633; Railroad Co. v. Kelly, 91 Tenn. 699, 30 Am. St. Rep. 902, 20 S. W. 312, and Anderson v. Miller, 96 'Tenn. 35, 54 Am. St. Rep. 812, 33 S. W. 615.

In each of these cases, while the injury complained of was not the necessary effect of the particular act of negligence held to be the proximate cause, yet it was the natural result, and one which, in the face of 339 human experience, might well have been anticipated as possible, if not probable. In all of them the principle recognized was that a wrongdoer is liable not only for the injury which immediately results from his act, but for such consequential injuries as, according to the common experience of man, were likely to result.

But the consequential injury, according to the authorities, must be natural, "following upon the original wrongful act, in the usual, ordinary, and experienced course of events”; Wiley v. West Jersey R. R. Co. 44 N. J. L. 248; Milwaukee etc. R. R. Co. v. Kellogg, 94 U. S. 469. But it is to be ob£erved that the result will not be unnatural, so as to relieve the original wrongdoer of responsibility, because he did not foresee or contemplate the precise consequence of his misconduct. It will be sufficient to fix liability on him if the particu

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lar result is one naturally connected, either immediately or through a series of events, with the original wrongful act: Watson on Damages and Personal Injuries, sec. 145.

On the other hand, where the result is such that no reasonable man would expect it to occur, and no knowledge is shown in the person doing the negligent or wrongful act that such a state of things exists as to make the damage probable, we think the rule is that the injury will not be regarded as actionable as against the wrongdoer: Sharp v. Powell, L. R. 9 Com. P. 253. And especially should this be true where the injury results from an act committed 340 by the injured party so obviously fraught with peril as should be sufficient to deter one of reasonable intelligence. In such a case it would seem impossible to find any ground upon which to maintain that the person guilty of the first act of negligence should be held liable to the party so injured, and the law, upon uncontroverted evidence showing such facts, without more, should relieve the original wrongdoer from liability. In such a case the intervening act of the party injured should be treated as the proximate cause of the injury: Seale v. Gulf etc. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602; Pike v. Grand Trunk Ry. Co., 39 Fed. 255.

On this phase of the subject, Mr. Watson, in section 82 of the work already referred to, says: “It is not necessary, it is believed, to show that the plaintiff's intervening act, which may render the defendant's act the remote cause of the former's injuries, amounted to contributory negligence in law. Whether, in its character, the plaintiff's act is negligent or otherwise, it will, just as an intervening cause of any other nature, if unexpected, and of a character which could not have been contemplated or foreseen, and without which no injuries would have been occasioned, relieve of liability the author of the original wrong."

Now, in view of these general rules, which it would seem, are based on common fairness and right reason, where, upon the undisputed facts as disclosed in the record, rests the responsibility for the loss of young 341 Palmer's life? Granting every inference indicating negligence on the part of the plaintiff in error which had to do with the origin of this fire, was the fatal injury sustained by him the natural or probable result therefrom? Could any reasonable man, though guilty of this negligence, have contemplated that one, from a place of safety, would go through flame and smoke to his mortal injury? Was

Am. St. Rep., Vol. 97-54

Sept.

such an act within the bounds of human experience? Or was there an unbroken connection between the negligent act and the injury? On the contrary, was not this intervening act of the deceased, however heroic it may have been one of extreme rashuess, called for by no requirement of duty to his employer-the proximate cause of his death? Was it not an intermediate, efficient cause, operating to disconnect the fatal consequence from the original act of negligence? While ordinarily the answers to those questions would naturally fall within the province of the jury, and, when made in their verdict, would be regarded as binding, yet where the facts are fairly incontrovertible the question of proximate or interven. ing cause is for the court: Holman v. Boston etc. Security Co., & Colo. App. 282, 45 Pac. 519; Stone v. Boston etc. R. R. Co., 171 Mass. 536, 51 N. E. 1; Bradley v. Ft. Wayne Ry. Co., 94 Mich. 35, 53 N. W. 915; Butcher v. Hyde, 152 N. Y. 142, 46 N. E. 305.

Whatever may hereafter be developed, at least on the record as it now is, we think these questions must 342 be answered, as a matter of law, against the contention of the plaintiff below, and that the judgment must be reversed because of a lack of evidence to support the verdict on this material point. The case is remanded for a new trial.

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The Doctrine of Proximate Cause is the subject of a monographic note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 807-861. If one is injured in attempting to save his property from a fire negligently set by another, the setting of the fire is the proximate cause of the injury, and the injured person may recover therefor if free from contributory negligence, but not if he rashly, recklessly, and unnecessarily exposes himsel to danger: Berg v. Great Northern Ry. Co., 70 Minn, 272, 68 Am, St. Rep. 524, 73 N. W. 648. Compare Cook v. Johnson, 58 Mich. 437, 55 Am. Rep. 703, 25 N. W. 388; Seale v. Gulf ete. Ry. Co., 65 Tex, 274, 57 Am. Rep. 602. So the law has 80 high regard for human life, that it will not impute negligence to an attempt to save it, unless made under such circumstances as to constitute rashness. See the monographic note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 849; Corbin v. Philadelphia, 195 Pa. St. 461, 45 Atl. 1070, 78 Am. St. Rep. 825, and cases cited in the cross-reference note thereto; West Chicago St. R. R. Co. v. Lider man, 187 Ill. 463, 79 Am. St. Rep. 226, 58 N. E. 367; Becker v. Louisville etc. R. R. Co., 110 Ky. 474, 96 Am. St. Rep. 459, 61 8. W. 997.

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NEAS v. BORCHES.

[109 Tenn. 398, 71 S. W. 50.] CONSTITUTIONAL LAW_Class Legislation—When Sustain. able.A statute is not objectionable as class legislation because it applies only to merchants, if it is a mere regulation of mercantile business, designed to secure to the creditors of merchants a just par. ticipation in the distribution of their assets and prevent fraudulent transfers and practices by them. (p. 853.)

CONSTITUTIONAL LAW-Sales in Bulk or of an Entire Stock of Goods.-A statute providing that the sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade or the sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and void as against creditors of the seller, unless five days before the sale, the seller and purchaser make a full and detailed inventory showing the quantity, and so far as possible, with the exercise of reasonable diligence, the cost price to the seller of each article included in the sale; and in good faith, make full, explicit inquiry of the seller as to the names and places of residence or place of business of each of the creditors, and at least five days before the sale, in good faith, notify, or cause to be notified, personally or by registered mail, each of such creditors of whom the purchaser has knowledge, or may, with the exercise of reasonable care, acquire knowledge, of the proposed sale and of the cost price of thé merchandise, is a valid exercise of the police power of the state. (p. 853.)

H. N. Cate and W. B. Hooper, for Neas.
W. J. and W. D. McSween, for Borches.

399 WILKES, J. This is an action of replevin, brought before a justice of the peace, for sixty-seven pairs of shoes, valued at sixty-seven dollars, levied upon by attachment in the hand of Neas, sheriff, in favor of Donaldson Bros.

On appeal to the circuit court the cause was heard by the judge without a jury, and there was judgment for the plaintiffs, Borches & Co., and Donaldson Bros. appealed to this court, and assigned errors.

It appears that Driscoll & Co. were engaged in business as retail merchants at Given, Tennessee, and while so engaged became indebted to Borches & Co., of Knoxville, and to Donaldson Bros., of Morristown, both being wholesale merchants, and both having sold goods to Driscoll in the course of his business. Toward the last of August, 1901, Cureton, traveling salesman for Borches & Co., demanded payment of the amount due that firm from Driscoll & Co., and, it not being paid, proceeded to buy from Heritage, the clerk of Driscoll & Co., the entire stock of Driscoll & Co., except a few odds and ends of

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