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Chattanooga Light & Power Co. v. Hodges.

juries as, according to the common experience, naturally result from the wrongful act in the usual and ordinary course of events. (Post, pp. 338-339.)

Cases cited: Wiley v. Railroad Co., 44 N. J., 248; Railroad v. Kellogg, 94 U. S., 469.

5. SAME. Intervening act of party injured-Proximate cause, when.

Although the doer of the act complained of has been guilty of negligence, yet he will not be held liable if the injury results, not as the natural consequence of the original negli gent act, but from an intervening act of the party injured, such as no reasonable man would expect to occur, and so obviously fraught with peril as to deter a man of reasonable intelligence; in such case the intervening act will be treated as the proximate cause. (Post, pp. 339-341.)

Cases cited: Sharp v. Powell, L. R., 7 C. P., 253; State v. Railway Co., 65 Tex., 274; Pike v. Railway Co. (C. C.), 39 Fed. Rep., 255.

6. SAME. Proximate or intervening cause-Question for court when facts undisputed.

While ordinarily it is for the jury to determine the proximate cause of an injury, yet where the facts are incontrovertible, the question of proximate or intervening cause is for the court. (Post, p. 341.)

Cases cited: Holman v. Security Co. (Colo. App.), 45 Pac. Rep., 519; Stone v. Railroad Co. (Mass.), 51 N. E., 1 (41 L. R. A., 794); Bradley v. Railway Co., 94 Mich., 35; Butcher v. Hyde, 152 N. Y., 142.

7. SAME. Injury to employee running into burning building. Case in judgment.

Plaintiff's intestate was employed by defendant as an engineer in its power house which, through the negligent condition and arrangement of its electric wires in connection with highly combustible lumber, was caused or allowed to take fire. Although there was a telephone in the building, intestate, instead of sending in an alarm over it, ran to a house across the street and sought to use a telephone located therein; failing in this, he returned, ran into the main entrance of the

Chattanooga Light & Power Co. v. Hodges.

building from which flames and smoke were then issuing and went down the burning hallway into the telephone booth, or box, when it was on fire; remaining there but a short time, he came out with his clothing aflame and so horribly burned that from the injuries thus received he died.

HELD: That, although there may have been such negligence on the part of defendant in the construction of the building as to cause it to take fire, yet the intervening act of plaintiff's intestate in returning into the building was the proximate cause of his injury and barred a recovery for his death.

FROM HAMILTON.

Appeal in error from the Circuit Court of Hamilton County. FLOYD ESTILL, Judge.

BROWN & SPURLOCK, for Chattanooga Light & Power Co.

RICHMOND, CHAMBERS & HEAD, for Hodges, administrator.

MR. CHIEF JUSTICE BEARD delivered the opinion of the Court.

This suit was brought by the defendant in error to recover damages for the death of his intestate, Milton Palmer, resulting, as is alleged, from the negligence of the plaintiff in error. There was a verdict and judgment in favor of the administrator for $10,000, and the case has been brought to this court by the Light and Power Company.

Chattanooga Light & Power Co. v. Hodges.

The deceased was one of the engineers of the company, and at night had charge of its power house engines and other machinery. While he was on duty, and about 9:30 p. m., fire was discovered in a framework cover of the electric wires which led up through the hallway to the room above, where they made their exit from the building. The fire rapidly spread, and occasioned the terrible injuries from which Palmer died. The theory of the plaintiff below was that negligence on the part of the defendant company in the use of combustible lumber in making this framework, and also in the location and condition of these wires, occasioned the fire which fatally burned the deceased while he was discharging his duty in seeking to save the property of his employer.

The record shows that on discovering the fire, young Palmer, instead of sounding the alarm through a telephone in the building, ran to a house across the street, and sought to do so with a telephone located there. After an ineffectual effort to make connection, he abandoned it, and returned to the power house. By that time the fire had spread until it was a serious conflagration. The flames and smoke were pouring out of the main entrance and the windows in that part of the building. There were other openings or doors into the power house, but, seeing Palmer in the act of passing in through this main entrance, a policeman on the ground expostulated with him on what he characterized as "foolhardiness." Disregarding the

Chattanooga Light & Power Co. v. Hodges.

expostulation, however, Palmer entered there, and went down the burning hallway into the telephone booth or box when it was on fire. Remaining there but a short time, he came out with his clothing aflame, and so horribly burned that in catching at himself the flesh parted or slipped from his hands. these injuries he died.

From

This is a meager outline of the fire and its results, so far as they affect the present case. While the evidence attributing the origin of the fire to negligence of the company was attenuated, it may be assumed that, with its inferences, it was sufficient to preclude us, under the rule, from saying that there was not material evidence to support the verdict on this point. Assuming, therefore, that the jury were warranted in finding that the defendant company was guilty of such negligence, were they also warranted in finding that this negligence was the proximate cause of Palmer's fatal injuries? For there must be a concurrence of these essentials in order to maintain the present action.

It seems to be well settled that, where one person is exposed to peril of life or limb by the negligence of another, the latter will be liable in damages for injuries received by a third party in a reasonable effort to rescue the one so imperiled. Pennsylvania Co. v. Roney, 89 Ind., 453 (46 Am. Rep., 173); Linnehan v. Sampson, 126 Mass., 506 (30 Am. Rep., 692); Eckert v. Railroad Co., 43 N. Y., 503 (3 Am. Rep., 721); Gib

Chattanooga Light & Power Co. v. Hodges.

ney v. State, 137 N. Y., 6 (33 N. E., 142, 19 L. R. A., 365, 33 Am. St. Rep., 690). But even in such a case the rescuer must not rashly and unnecessarily expose himself to danger. Pennsylvania Co. v. Langendorf, 48 Ohio St., 316 (28 N. E., 172, 13 L. R. A., 190, 29 Am. St. Rep., 553).

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. Railroad Co., 43 N. Y., 502 (3 Am. Rep., 721); Morris v. Railway Co., 148 N. Y., 186 (42 N. E. 579); Condiff v. Railroad Co., 45 Kan., 260 (25 Pac., 562); Cook v. Johnston, 58 Mich., 437 (25 N. W., 388, 55 Am. Rep., 703); and Seale v. Railway Co., 65 Tex., 274 (57. Am. Rep., 602). On the other hand, in Berg v. Railway Co., 70 Minn., 272 (73 N.

W., 648, 68 Am. St. Rep., 524); Liming v. Railroad Co., 81 Iowa, 246 (47 N. W., 66); Car. Co. v. Laack, 143 Ill., 242 (32 N. E. 285, 18 L. R. A., 215); Rexter v. Starin, 73 N. Y., 601; and Wasmer v. Railroad 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

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