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prior or remote cause and the injury, a distinct, successive, unrelated, and efficient cause of the injury." Missouri P. R. Co. v. Columbia, 65 Kan. 390, syl. ¶¶ 1, 2, 58 L.R.A. 399, 69 Pac. 338.

"The intervening cause which will relieve of liability for an injury is an independent cause which intervenes between the original wrongful act or omission and the injury, turns aside the natural sequence of events, and produces a result which would not otherwise have followed, and which could not have been reasonably anticipated." Winona v. Botzet, supra.

"The mere fact that another cause intervened between defendants' negligence and plaintiff's injury is not enough to relieve the former from liability if the intervening act was of such nature that its happening was to have been apprehended. Stated otherwise, the intervening cause will not relieve the original negligence of its actionable quality if the occurrence of the former might have been anticipated." Fishburn v. Burlington & N. W. R. Co. 127 Iowa, 483, 490, 103 N. W. 481, 484.

"If a carrier be guilty of negligence not in itself harmful, but wrongful only because of injurious consequences which may follow, and a new cause intervene between such negligence and the injury complained of, which new cause is not a consequence of the original negligence, which reasonable prudence on the part of the original wrongdoer could not have anticipated, and but for which the injury could not have happened, the new cause is the proximate cause, and the original negligence is disregarded, as not affecting the final result." Rodgers v. Missouri P. R. Co. 75 Kan. 222, 223, 10 L.R.A.(N.S.) 658, 121 Am. St. Rep. 416, 88 Pac. 885, 12 Ann. Cas. 441.

cause." Eberhardt v. Glasgow Mut. Teleph. Asso. 91 Kan. 763, 765, 139 Pac. 416, 417.

"Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. ... If the act of the third person, which is the immediate cause of the injury, is such as, in the exercise of reasonable diligence, would not be anticipated, and the third person is not under the control of the one guilty of the first act or omission, the connection is broken, and the first act or omission is not the proximate cause of the injury." Seith v. Commonwealth Electric Co. 241 Ill. 252, 260, 24 L.R.A.(N.S.) 978, 132 Am. St. Rep. 204, 89 N. E. 425, 428.

"The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end; that force being the proximate cause of the movement. . . The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?" Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 474, 24 L. ed. 256, 259.

The injury to the plaintiff was related to the negligence of the defendant. That injury did follow, in regular order, the several successive events flowing from that negligence. There was an unbroken connec"The question of proximate cause is one tion between that negligence and the injury frequently so near the border line as to to the plaintiff, unless the attack by the cause much perplexity, but, generally speak-cow or the acts of her drivers broke that ing, it may be said in this state that the connection or succession of events. It can proximate is the producing cause; not the hardly be said that these acts of cow or one supplying the condition, but the one drivers were causes independent of the origproducing the injury. The one supplying inal acts of negligence. The driving of the the condition may be so intrinsically carecow by the defendant's employees was made less as to amount practically to a continu- necessary by the wreck. It was the duty of the defendant to gather up the liberated ing invitation, so to speak, for a direct cattle. The producing cause, the one withcause to join in producing a disastrous re- out which the injury would not have ocsult. But to be such it must present a curred, was the negligence of the defendant. condition of danger so manifest that the one That negligence made it necessary to emresponsible must be held to have been negli- ploy the drivers. They were not acting gent in furnishing the means for a probable independent of the defendant. Their eminjury. But a condition which could not ployment was to have been anticipated. reasonably be expected to endanger, and They were under the control of the defendwhich, but for some independent cause ant. The cow had no intelligence. She without which the injury would not have could not produce a cause of injury for occurred, would not have endangered, does not ordinarily amount to a proximate

which some person might be liable. The acts of the cow cannot be said to have been

a cause of the injury to the plaintiff, in- the class to which it belongs, and if such tervening between the negligence of the propensities are of a nature to cause injury, defendant and that injury, so as to relieve he must anticipate and guard against them.” the company from liability for its negli- p. 189. gence. The drivers may have been negligent in handling the cow, but that is not alleged, and cannot be considered. If they were negligent, and had been separate and independent agencies, the defendant probably would not be liable.

"What is the proximate cause of an injury is ordinarily a question for the jury." Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256.

See also Atchison, T. & S. F. R. Co. v. Parry, 67 Kan. 515, 73 Pac. 105; Home Oil & Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488,

See also Dewald v. Kansas City, Ft. S. & G. R. Co. 44 Kan. 586, 24 Pac. 1101, 3 Am. Neg. Cas. 447; Eberhardt v. Glasgow Mut. Teleph. Asso. 91 Kan. 763, 767, 139 Pac. 416.

If O'Connell had been the owner of the cow, would he be liable for the injury done? He learned that the cow was vicious when "When the facts are established, whether she charged him on three separate occa- the negligent acts complained of are the sions before injuring the plaintiff. O'Con-proximate cause of the injury is a question nell then had notice of the cow's vicious of law to be determined by the court." disposition. It was then his duty to see Consolidated Electric Light & P. Co. v. that she did no injury to anyone. He was Koepp, 64 Kan. 735, 736, 68 Pac. 608, 609, then bound to use a degree of diligence that 11 Am. Neg. Rep. 404. would prevent injury. It finally became necessary to rope this cow. That is probably what ought to have been done before she injured the plaintiff. The cow was in the streets of a city. She was almost sure to hurt some person, unless her freedom of movement was absolutely restrained. A jury would have been warranted in finding O'Connell guilty of negligence in handling the cow, and therefore liable for the damage done by reason of that negligence. The owner of a domestic animal known by him to be vicious must see that it does no injury. 3 Enc. L. & P. 966; 1 R. C. L. 1088, 1089; 2 Cyc. 368, 369.

"In a case where it is either admitted, or from the facts as found established, that two distinct, successive causes, unrelated in their operation, conjoined to produce a given injury, the question of remote and proximate cause becomes one of law for the decision of the court, and not of fact for the determination of the jury, and the determination of this question of law by the jury is not binding or conclusive on the court." Missouri P. R. Co. v. Columbia, 65 Kan. 390, syl. ¶ 3, 58 L.R.A. 399, 69 Pac. 338.

In Clowdis v. Fresno Flume & Irrig. Co. 118 Cal. 315, 62 Am. St. Rep. 238, 50 Pac. 373, 3 Am. Neg. Rep. 326, the owner of a bull was held liable for injuries inflicted while the bull was being driven from one place to another, a vicious disposition being first developed on the trip, the injury be-lation to or independence of each other. ing done after the bull had attacked several persons.

The jury found that the cattle were what is known as wild, dangerous Texas cattle. By the negligence causing the wreck they were released in a city. It is only reasonable to expect this kind of cattle turned loose in a city to do damage, not only to property, but to persons as well. The fact that one of them did hurt an old lady, without any additional cause therefor, shows that injury ought to have been expected as a result of these cattle roaming on the streets of Harper. It is generally known that wild, dangerous Texas cattle will attack men on foot. When these cattle were released, it ought to have been anticipated that they would attack pedestrians whom they might meet.

In Hammond v. Melton, 42 Ill. App. 186, 1 Am. Neg. Cas. 274, we find this: "The owner of a domestic animal is bound to take notice of the general propensities of

It must be noted that in all the cases quoted from, the question of proximate and intervening causes depends on their re

Whether or not the question of proximate cause should have been submitted to the jury is unimportant, if we have reached a correct conclusion concerning the liability of the defendant, on the facts as shown by its abstract. The question was submitted to the jury, and the jury, in its general verdict, found against the defendant, and the court approved the verdict. We are not unmindful of the answer to question 17. That answer is that the direct and im

mediate cause of the cow's running over the plaintiff was her vicious disposition. But that vicious disposition was not the proximate cause of the injury to the plaintiff. That was an unintelligent dangerous force that had been loosed by the defendant's negligence.

The defendant cites 29 Cyc. 419, 426, to the effect that it owed no duty to the plaintiff. There was no contractual relation between the parties, but the defendant did

owe to the plaintiff the duty of not injuring | ugly and run against a person on the highher by any agency it might set in motion. way, could it be said that the injury was We have given this case careful consid- the natural and probable consequence of eration, and are unable to say that the the defective fence, and that it was a rejudgment should be interfered with, and it sult that the owner should have foreseen? is therefore affirmed. To my mind the injury to the plaintiff was not the natural or probable consequence of

Burch, Mason, and Dawson, JJ., con- the collision. It was no more than a re

cur.

Johnston, Ch. J., dissenting:

I am therefore of the opinion that the judgment should be reversed.

mote possibility that a cow so liberated would, while being chased by a horse about four hours later, run against and injure I am unable to concur in the judgment a person, and for such remote consequences of affirmance. The evidence sufficiently there is no liability. There was another shows that the collision and resulting liber-efficient and proximate cause of the injury, ation of the cattle from the car were due bus whether the defendant was responsible to the negligence of the railway company, for that cause has never been submitted to and for any injury that can be said to be or determined by the jury. the proximate result of that negligence, the company is responsible. The injury, however, was not inflicted when the cattle were liberated from the car, nor did it occur Porter and West, JJ., concur in the foreuntil a long time after the accident by going dissent. which the cattle were released. In the fourhour period which elapsed between the time of the accident and the injury of the plaintiff, the cow had strayed away a considerable distance and had even been lying down. O'Connell, who had a riding horse, was asked by the agent of the company to drive this cow and other cattle to the stock yards, and if, through his negligence in driving the cow, an injury was inflicted, the company may be held liable. The negligence charged, and upon which the verdict rests, is the improper switching of the trains which resulted in the collision. The collision, in my opinion, cannot be regarded as the producing or proximate cause of the injury. A party is not liable for every consequence, near and remote, which may possibly result from negligence. It is only those which are the natural and probable consequences of the negligent act, and

KENTUCKY COURT OF APPEALS.
T. F. BRANNON, Appt.,

V.

COMMONWEALTH OF KENTUCKY.

(162 Ky. 350, 172 S. W. 703.)

Evidence
juror.

bias of jury

affidavit of

1. Upon the question whether or not a juror was so biased against accused as to justify setting aside a verdict against him, his affidavit to the effect that he used his influence to reduce the punishment fixed by the jury is admissible. Appeal

refusal to set aside verdict. 2. No abuse of discretion which will re

quire a reversal on appeal in refusing to set aside a verdict for bias of a juror is Misconduct toward witness as contempt of court.

For misconduct towards jurors as contempt, see note to Poindexter v. State, 46 L.R.A. (N.S.) 517.

As to procuring one having knowledge of an offense to leave the jurisdiction, see note to Com. v. Berry, 33 L.R.A. (N.S.) 976.

The which should have been foreseen. cow was run along the highway by O'Con-Note. nell, and he says that when she got warmed she became mad. She was a whiteup faced western cow, but plaintiff's witnesses said that any cow is likely to show such a disposition when she is so chased, and in that respect she acted like an ordinary cow. The fact that she became excited and ugly under such treatment is not the proximate result of the failure to turn the switch, and, judged by common experience and observation, the likelihood that anyone would be struck by the cow while she was being driven was not within reasonable anticipation, and is not the natural and a referee. If probable consequence of the collision.

an

a

owner of a cow allowed her to escape because of an insufficient fence, and neighbor, in driving her home, should run her and excite her, and she should become

Arrest.

It is contempt to procure the arrest upon civil process of a material witness for one of the parties to a pending action, while he is in attendance at a hearing therein before State v. Buck, 62 N. H. 670. So, in Smith v. Jones, 76 Me. 138, 49 Am. Rep. 598, an action to recover damages for causing the plaintiff's arrest and imprisonment at a time when he was privileged from arrest, as he was returning home from a place where he had been attending court as

ness.

Same

ignorance of subpœna.

5. That one who assaults a prospective witness against him does not know that he has been subpoenaed is immaterial to the question of his liability for contempt.

shown by the fact that the court acts upon | punish for contempt is not adequate to ina statement in his affidavit that he used his flict a suitable punishment for a criminal influence to reduce the punishment fixed by contempt may submit the matter to the dethe jury, in preference to affidavits by termination of a jury. friends of the accused that the juror told them that accused should be given the limit. Contempt criminal assault on wit3. It is a criminal contempt for one under several indictments, in one of which the jury is out but eventually returns a verdict of guilty, with another yet to be tried, to commit a battery on a witness who testified against him in the pending case and is to be called in a subsequent one, for the purpose of punishing him for the testimony given and intimidating him for the future.

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submission to jury.

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It is contempt of court to endeavor by bribery to induce a witness to suppress evidence which it is his duty to give. Re Hooley, 79 L. T. N. S. 306, 6 Manson, 44.

So, it is a contempt of court to induce, persuade, and procure, by the payment of money, one known to be a material and important witness for the United States in a pending prosecution, who, it is known, will be subpoenaed by the government, to avoid the service of any subpoena upon him, and to conceal and hide himself, and absent himself from the court, preventing the United States from using him as a witness upon the trial of the cause. Re Brule, 71 Fed.

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punishment -excess.

6. A fine of $1,000 and six months' imprisonment in jail is not excessive to inflict upon one who commits a battery upon case, to intimidate him from giving evidence one who testified against him in a criminal in another case yet to be tried in which he is a prospective witness.

(January 27, 1915.)

restricting the power of the United States court to inflict summary punishment for contempt to certain specified cases, among which is such misbehavior, for one, in the jury room of the court, which is temporarily used for a witness room, and which is located within less than 7 feet of the court room, to approach a witness and improperly attempt to deter him from testifying for the government in a pending action; or to approach a witness in the hallway of the court building, immediately adjoining the court room, and offer him money not to testify against the defendant in the action. Re Savin, 131 U. S. 267, 33 L. ed. 150, 9 Sup. Ct. Rep. 699.

And it is a direct contempt committed in the presence of the court, for one to approach a witness in the main corridor of the building, near the court room, while he is in attendance for the purpose of testifying in a criminal case on the calendar of the court and about to be called, and to ask him to go to a neighboring saloon and have a drink, and then to invite him to take a ride, and to tell him that the case in which he has been subpoenaed has been continued, and to give him money and procure him not to be present in court at the time when the case has been set for trial. People v. Jackson, 178 Ill. App. 121.

Likewise, it is contempt committed in the presence of the court, or so near thereto as to interfere with its procedure, to attempt, in the hall of the courthouse, or just outside and near the courthouse, pending the trial of a criminal case, to bribe a witness in attendance upon the court in the case, to modify his testimony and swear falsely therein. Fisher v. McDaniel, 9 Wyo. 457, S7 Am. St. Rep. 971, 64 Pac. 1056.

And bribery of a material witness in a pending criminal cause is misbehavior so near the court as to obstruct the adminis tration of justice, within the meaning of the statute limiting the power of the Federal courts to punish summarily for contempt, notwithstanding the bribery took place at the residence of the witness, a mile away from the court building. Re Brule, supra.

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The facts are stated in the opinion. Messrs. Denis Dundon and John J. Williams, for appellant:

The acts proved did not constitute contempt of court.

Messrs. James Garnett, Attorney General, and Robert T. Caldwell, Assistant Attorney General, for the Commonwealth: The verdict is not excessive.

French v. Com. 30 Ky. L. Rep. 98, 97 S. W. 427.

Contempt of court was committed.

Melton v. Com. 160 Ky. 642, L.R.A. 1915B, 689, 170 S. W. 37; Criminal Code of Practice, § 273; State v. Tugwell, 19 Wash. 238, 43 L.R.A. 717, 52 Pac. 1056; Re Chadwick, 109 Mich. 588, 67 N. W. 1071; Fishback v. State, 131 Ind. 304, 30 N. E. 1088; Bloom v. People, 23 Colo. 416, 48 Pac. 519;

2 Roberson, Crim. Law & Proc. § 649; Newport v. Newport Light Co. 92 Ky. 449, 17 S. W. 435; Wages v. Com. 13 Ky. L. Rep. 925; French v. Com. 30 Ky. L. Rep. 98, 97 S. W. 427; Gordon v. Com. 141 Ky. 461, 133 S. W. 206. Messrs. Hazelrigg & Hazelrigg also for Ex parte Turner, 3 Mont. D. & De G. 523; appellant. Ex parte McLeod, 120 Fed. 130.

And in United States v. Carroll, 147 Fed., 947, although it was held that the evidence was too unsatisfactory upon which to find the accused guilty, beyond a reasonable doubt, of an alleged attempt to influence a witness, the court said that "any direct attempt on the part of any person to bribe or persuade a witness to testify contrary to the truth in a cause pending and then on trial, where made so near the court as is designated by the witnesses for the government, being not to exceed three blocks away, constitutes, in legal contemplation, a direct contempt; that is to say, it constitutes misbehavior so near to the court as to obstruct the administration of justice."

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and also recognized to appear at the trial of an indictment, from appearing and giving evidence. McCarthy v. State, 89 Tenn. 543, 15 S. W. 736.

And in Partridge v. Partridge, Tothill, 40, it appears that a man was committed for terrifying a witness who was to be examined at a commission.

And see also Re Savin, supra, under "Bribery;" French v. Com. infra, under “Inducing to disregard summons, subpœna, or recognizance;" and Ricketts v. State, infra, under "Subornation of perjury."

Inducing witness to evade service of summons or subpœna.

Where an indictment has been found and

And see also State v. Moore, and French is pending in court, and a summons requir v. Com. infra, under "Inducing to disregarding the attendance as a witness in the case, summons, subpoena, or recognizance."

Intimidation.

It is contempt of court to endeavor to intimidate a witness in a pending action. Bromilow v. Phillips, 40 Week. Rep. 220; Shaw v. Shaw, 2 Swabey & T. 517, 31 L. J. Prob. N. S. 35, 6 L. T. N. S. 477, 8 Jur. N. S. 141; Re Herencia, 1 Porto Rico Fed. Rep. 207.

Thus, it is a contempt of court for a party to a pending suit, who was in court

when witnesses who had been sworn in the

case were charged by the court not to talk to anybody, or permit anybody to talk to them, or in their presence, about the case, and knew of this charge and order, to talk to the witnesses, either directly or indirect ly, with the expectation that they will hear his remarks, the only effect, and only expect ed effect, of which could be that this would serve to intimidate the witnesses. Re Herencia, supra.

And it is contempt of court for a party to a pending suit to attempt, by any communication, to intimidate a prospective witness for the other party in giving his evidence. Shaw v. Shaw, supra.

Likewise, it is contempt of court to prevent, by intimidation, a witness residing in another state, who has been summoned

at an approaching term of the court, of one whose name is indorsed on the indictment as a witness, has been issued and is in the hands of the sheriff to be served on him, it is contempt of court for one who knows these facts, for the purpose of preventing the service of the summons, to remove the witness to a remote part of the county, away from his ordinary place of residence,

and advise and direct him thus to avoid the service of the summons. Haskett v. State, 51 Ind. 176.

And under a statute providing that every court of record shall have power to punish suit noticed for trial therein, while going for unlawfully detaining any witness in a to, remaining at, or returning from, the court, it is a contempt of court to counsel and induce a material witness for one of the parties to a pending action, who has not yet been subpoenaed to appear, to depart from the jurisdiction of the court, to avoid the service of a subpoena. Montgomery v. Palmer, 100 Mich. 436, 59 N. W. 148.

Inducing witness to disregard summons, subpoena, or recognizance.

It is contempt of court for one, with the intent to hinder and obstruct the administration of justice in a court, by giving or offering money or bribes, or by threats of

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