PIKE V.GRAND TRUNK RY. CO; OF CANADA.

255

apply for a further accounting as to earnings subsequently made, he would lose the remedy of an attachment against the property of the defendant. It is well settled that the pendency of a prior suit between the same parties for the saine cause of action in the court of another state is not pleadable in abatement to a second action. So, also, it is well settled, although there are authorities to the contrary, that the pendency of a suit between the same parties for the same cause of action in a federal court is not a defense to a second suit brought in a state court; and, when the second action is brought in the federal court, the pendency of such a SUlt in a state court is nota defense. Stanton v. Embrey. 93 U. S. 548; Insurance Co. v. Brune's Assignee, 96 U. S. 588. Probably the reason of this doctrine is found in the consideration that under such conditions the second action cannot be assumed to be unnecessary or merely vexatious. It has never been decided that the pendency of a prior suit in equity is a good plea in abatement to a subsequent suit at law between the same parties. The contrary doctrine has been intimated in Laflin v. Brown, 7 Mete. 576; in Blanchard v. Stone, 16 V1. 234; in Hatch v. SpOfford, 22 Conn. 485; in Graham v. Meyer, 4 Blalchf. 129; Hughes v. Elsher, 5 Fed. Rep. 263. See, also, Harmm" v. Bell, 7 Moore, P. C. 267. It is not intended, by what has been said, to indicate an opinion that the plea in abatement in the present case is not a good defense. Whether it is or is not is a question which under the circumstances should be reserved until the trial of the action. The defendant can obtain a discharge .of the attachment by giving an undertaking, authorized by section 688 of the Code, to pay the plaintiff the amount of any judgment he may obtain. It is safer to put the detimdant to the inconvenience of obtaining the discharge in this way than to dissolve the attachment now, upon the ground that the plaintiff cannot maintain the suit, when there is a debatable question of the correctness of such a conclusion. The motion is denied.

PIKE

v.

GRAND TRUNK

Ry.

CO. OF CANADA.

(Circuit Court, D. New Hampshire.

1.

DAlofAGES-PROxHorATE CAUSE-VOLUNTARY ACT.

May 15, 1889.)

Plaintiff's intestate left the house where she lived. and went. 40 or 50 rods, to where there was a fire set by defendant's locomotive. In attempting- to· extinguish. the fire she was fatally burned. The house where she lived was not then in danger, nor did she have any interest in the property which was on fire. Held, that the proximate cause of her injury was her own voluntary act, and there could beno recovery. Where the facts are undisputed, it is the province of the court to determine the question of proximate cause.

2.

SAME-PROVINCE OF COURT.

At Law. On motion to direct verdict. This was an action of tort to recover for injuries received by plaintiff's intestate at Groveton, N. H. t in May, 1885. The writ contained three

256

FEDERAL REPORTER,

vol. 39..

counts,-two at common law, and one to recover under the prOVISIons of section 8 of chapter 162 of the General Laws of New Hampshire. Plaintiff claimed that a fire was set by a locomotive of defendant on the land of one William W. Pike, upon which stood a house in which plaintiff's intestate lived in the family of plaintiff; that she had reasonable cause to fear its destruction, and went in company with a child of six years of age to extinguish it. The distance from the house to the place of the fire was 52 rods. In attempting to extinguish the fire, it was communicated to her cotton dress, and she was so severely burned that she died in about three hours afterwards. At the close of the testimony defendant moved for a verdict, upon the ground that the setting of the fire was not the proximate cause of the injury, and that the damages did not accrue by rt'ason thereof. La-dd, Aldrich &- Remich, for plaintiff. A. A. Strout and Ossian Ray, for defendant.
COJ,T, J., (orally.) The motion made by the defendant, at the close of the testimony for the plaintiff, was left undecided, and the counsel for the plai ltiff suggested at the time that the motion was made that it might be well to wait before passing upon it until the whole evidence was in, and, the question raised by the motion being somewhat complicated, I decided to allow the case to proceed. I have now reached the conclusion, after careful consideration, to direct a verdict for the defendant. The ground upon which I shall direct a verdict for the defendant is that, upon the uncontradicted evidence, it was the voluntary act of Mrs. Pike which was the proximate cause of her death. It being the established rule of law that the proximate, and not the remote, cause determines the question of liability, if upon the uncontradicted evidence the proximate cause was Mrs. Pike's voluntary act, then it is the duty of the court to direct a verdict for the defendant. If upon the question of proximate or remote cause the evidence is contradictory, or the question is in doubt, then it would be the duty of the court to submit the question to the jury. It is undisputed that Mrs. Pike went out from her house of her own free will, and walked up the railroad track, to put out a fire from 30 to 40 rods distant, and that she met her death in the attempt. The rule of law is that a person is liablo for all the consequences which flow in ordinary natural sequence from his negligence, or, according to another view, he is liable for all the nonsequences which could be foreseen as likely to occur; but he is not liable for the independent act of an intelligent stranger, because that w(luld not follow as an ordinary natural sequence from his negligence, and such interference by a stranger could not be foreseen. The spontaneous action of an independent will is said, therefore, to break the causal connection. This is in truth the intervention of a new force outside of the regular natural sequence of the primary cause, and which cannot be a subject of precalculation. It is elemental law, therefore, that when such new, independent,and intelligent force intervenes, it breaks the train of causation, and it becomes the proximate

PIKE fl., GRAND TRUNK RY. CQ. OF CANADA.

257

cause, and the original act .of negligence the remote cause. The statement of the principle is easier than its application. Each case must be governed by its own facts and circumstances, but, if the case comes clearly within the rule, the court should not hesitate to enforce it. We have stated the rule, and have said that in our opinion Pike comes within its general terms, but does not her case come under some of the exceptions or limitations to the rule which have been recognized by the courts? The intervening cause is not the proximate cause, unless the person acted of his own free will. The first cause does not cease to be the proximate cause if such intervening stranger is imbecile, or actio under compulsion, or under a sense of imminent peril; or, in other words, under such circumstances, produced by the first cause, as would give no opportunity for the exercise of free volition on the part of such stranger. Now, to my mind, there is no evidence going to prove that Mrs. Pike's act was not a strictly voluntary one. There is no evidence going to prove that her act was one of compulsion, or that she acted under the fear of imminent peril to herself, or that the circumstances were such as to destroy her power of volition. Each case must be controlled by its own circumstances. Upan the evidence it cannot be doubted that Mrs. Pike had every opportunity to escape. Neither the direction of the wind, nor the proximity of the fire, nor the dryness of the season, upon the plaintiff's own evidence, placed the intestate in peril for the time being. Instead of escaping from the danger, whatever it was, she voluntarily advanced towards it, going a distance of about 50 rods towards and into the place where the fire was burning. Her act may have been praiseworthy, but it was not the less voluntary, and it does not relieve her from the consequences which ensued. Mrs. Pike had no legal or equitable interest in this property, and consequently in this action her administrator cannot invoke the principle that it was her duty to approach the fire, and endeavor to put it out. Even in a supposed action brought by the owner of the property against the railroad company, for damage caused by fire, the failure of this lady, 72 years of age, though she was active and strong for her age, to voluntarily endeavor to put out a fire 30 or 40 rods distant from the dwelling, could hardly be urged as contributory negligence on the part of the owner of the property. In the present case, I can see nothing in the situation of Mrs. Pike t0wards the property which was on fire which called for the action she took. The piaintiff's counsel in their argument have cited Page v. Bucksport, 64 .Me. 51; Stickney v. l'rfaidstone, 30 Vt. 738,-as supporting a right of recovery under the facts disclosed in this case. But these cases do not meet the present one. There the plaintiff was in duty bound to act as he did; besides, his act grew immediately out of and was a part of the original act of negligence. The plaintiff in those cases was acting under the immediate force of the first cause. What took place was but a single happening or event, which was directly and immediately occasioned by the first cause. There was no such element present, as in this case, of a party yoluntarily and deliberately putting herself in a dangerous posiv.39F.no.4-17

· 'FEI%iRAL

REPOn'l'.EB,

vo1:39.·'

.!',

did nottesuJt ahd immediately from the cause. Thet>laintiff also. 'relies upon Railway Co. v.Kello[jg,94 U; 8.469, but that case distinctly recbgnizes the doctrine ofproxima.t.fl Muse, which the leading cases in this country and England have established. Mr. Jus. tice STRbNG in that opinion says:
"We do not say that even t,he natural and probable of ll. wrongful act or omission are in' 'all aMes to be chargeable to the misfeasance or non-feasance. They are not when there is sufficient and independent cause operating between the wrong, and the injury. In such a case the resort of the sufferer must be to the Qriginator of the intermediate cause. But when there is no intermediate efficient cause the original wrong must be considered as reaching to the. effect, and proximate' to it. The inquiry m nst, therefore, always be whether there was any intermediate calise; disconnected from the primary fault, and self-operating. which produced the injury."

I .cannot hold that the Kellogg Case is an authority to the position taken by the plaintiff that the q.uestion of remote or proximate cause must, under all circumstances; be submitted to ajury for decision. If upon the facts presented there is any question as to what was the proxcause, then the case should go to the jury; but if the undisputed facts show,' under well-established rules of law, .what the proximate cause is, then manifestly the court should aet accordingly. This position is recognized in the later case of Scheffer v. Railroad Co" 105 U. S; 249, where the supreme court held, as a matter of law, that the proximate cause of the suicide or death of the intestate was insanity, and that it was not due to the negligence of the company, whereby he suf'fered an injury eight months before. In the time allowed me I have given such consii.leratiol1 as I 'was able to this motion. It has been my effort to discover, if possible, 'some question which could fairly be submitted to the jury in thIs' case. The court should be clearly l:latisfled before granting a motion of this character, but,if so satisfied, it becomes just as clearly the duty of the court not to hesitate in granting it. In. revolving in my mind what charge to give to the jury, I did not see; under theevidencE! and the law, how I could frame one which would nqt substantially ditect them, to bring in a verclct for the defendant; and in the light I now-have I do not see how, if the jury should find for the plaintiff, I eOllldhesitate in setting the vereict aside on motion of the defendant.. Sucllbeing the situation of the case, and such my views, I feel it mydtity now, upon theelose of the whole evidence, to direct the ,to. return a verdict for the defendant.

I

UNITED STAlI1EStI.pNONDAqA .-C<>;UNTY

"

BANK.

2l?9

V,'qNONDA<;lA COONTY)AV.BANK.

(Di8trict OOurt, No D. New :y:"ork. July 5, 1889.)

"

,

1.

Fal-se vouchers, pnrporting to' beslgned:by W., dead.) and :' ftaudulen t affida:vits and proofs, in due' form were .prasented to a pension, agent of the United States. ,tln,d he dreW,two drafts on the treasury in favor of W.· the drafts having a'.li'otfce ,on the back that the "payee's indorsement' on this check must correspl'>ud with signature to the voucher for which the; check was given." The, d!J1afts, w,ith furged indorsements,of Vi.'s name, were in good faith cashed by defen,dant, and by it indorsed and paid by pillintiff, tbe United States. Two years later plaintiff dl8Covered t.he fraud. and within three days notified defendant, with a demand for the amount of the drafts,. but refused to return the drafts to defendant when paid. Held, that plaintiff, could recover the amount. Plaintiff was not chargeable with' negligence in not discovering the fraud immediately,nor in failing, to, discover the dell.th of W., prior to iSSUing the vouchers and drafts.
SAME-REPRESENTATIONS AS TO 'PAYEE. LIABILITY oFINnoRsim-r;ACHES.

NEGOTIA;BLE INSTRUMENTS-bRAFTS-INDORSEMENT.",

2.

8.

4. 5.

There was no implied assertiiJn, in the act of issuing the draft!, that the payee was Iivin',6' The notice on the bacll:of the drafts did not change the legal character of defendant's indorsemeilt. Plaintiff was under no legal obligation to return the dri\fts to defendant on an offer of payment thereof by the latter.

SAME-SPECIAL PROVISIONS., .' ·

SAME-RETURN OF DHAFT TO INDORSER.

At Law. On motion for new trial. This is an action to recover money paid by plaintiff to defendants under a mistake of fact. On the 25th of July, 1882, a pension certificate was issued to Alma Wood, as mother of Elias A. 'Wood, who died in the war of the Rebeliion. On the 3d of August false vouchers, purporting to be signed by Alma Wood, and accompanied by a fraudulent affidavit and certificate, were presented to the United States pension agent at Syracuse. On the same day the pension agent drew two drafts, for $1,000 and $924.80,respective:y.upon the assistant treasurer of the United States, payable to the order of Alma Wood, and mailed them to her address at Constantia, N. Y. On the back of tile drafts is the following indorsement: "Payee's indorsement on tIlis check mllst correspond with signature to the VOUcher for wWchtIJe check was given. If the payee cannot write, his or her mark should be witnessed, and the witness state his or her residence in full. " Alma Wood died July 8, 1882. Her signature upon the vouchers and drafts was forged. On the 8th of August the drafts with the forged indorsements, arid bearing also the indorsement of Sylvester Wood, the husband of Alma Wood, were presented at defendants' bank, and cashed by them. On one of the drafts appears an indorsement indicating that the signature of Alma Wood was identified by one John O'Brien, an attorney, who was interested in oJ:>taining the pension, and who at the time