Moon v. Transit Co. case his negligence concurs with "some outside cause" which alone would not have produced the injury, but the conclusion reached was that such "outside cause" must be one other than plaintiff's negligence. This much, at least, these cases decide. The rule thus announced is not assailed, as we understand counsel, but it is insisted this case does not fall within it. In support of this contention it is argued that there appeared in this case "outside causes" sufficient to satisfy the rule. (a) It is urged the fact a building stood near the corner of the intersection of Washington and Taylor avenues and obstructed the view of motorman and carriage driver, respectively, until they drew near the crossing, is conclusive of the existence of the requisite "outside cause." This cannot be true. The building there and the resultant obstruction of view was but one of the circumstances to be considered in determining the question as to what was ordinary care on the part of both driver and motorman. Its presence was not due to the negligence of any one. It affected in no wise the control of either motorman or driver over his vehicle. It merely took its place with all other circumstances and surroundings at the time and was to be considered with them in determining whether, for instance, the speed of the car, the failure to sound the bell or driving the carriage upon the track in the circumstances constituted negligence on the part of him who was responsible for such act or omission. In the cases cited the situation with respect to buildings on the street line was not unlike that here. (b) It is next suggested there were several grounds of negligence separately submitted and in considering the negligence submitted in any one instruction each other act of negligence of which there was evidence would constitute a cause of such character as to satisfy the rule and justify the instruction given. In the cases mentioned the same situation ex Moon v. Transit Co. isted. Several different grounds of recovery were submitted to the jury. The rule was announced in connection with the very situation now relied upon to take this case out of its influence, and, even in the limited scope given it in the above statement of it, excludes the idea at the root of the argument now being considered. Further, one instruction in this case submits the question of common law negligence in failing to sound a warning in approaching the crossing. In determining whether appellant was negligent in this respect it was the duty of the jury to take into consideration every surrounding circumstance of every kind and as to that instruction, at least, there could have been no other act of negligence irrelevant to the question of liability and which could with any reason be called an "outside cause." So far as this instruction is concerned, therefore, the insistence now being considered could not aid respondent. The same considerations apply to the instruction concerning the speed of the car. But we think the broad general ground should be taken that other acts of negligence on the part of appellant, separately submitted as distinct and complete grounds of recovery, cannot be considered as meeting the requirements of the rule announced in the cases cited, in which the same situation existed which is present here. No precedent to the contrary has been discovered and no sound reason is suggested for so modifying the former decisions. (c) It is also urged the instructions given as to contributory negligence cure the defect in that they precluded the jury's being misled into finding for respondent on the ground his driver's negligence "contributed to cause" the injury. It is unnecessary to say more in this connection than that in the instruction condemned in the Hof and Krehmeyer cases, as in those in this case, the jury were required to find plaintiff exerecised ordinary care, i. e., was not guilty of contributory negligence. Repeating this rule, as to Moon v. Transit Co. contributory negligence, in a separate instruction and in different language did not change its effect so as to require a different conclusion as to the use of the formula "contributing to cause the injury" or "one of the contributing causes of plaintiff's damages and injuries." (d) There is another thing in the instructions which ought to be noted. The jury was authorized by each to find for respondent if (having found the facts according to the preceding portion of the instruction), they found the specified act "was the proximate cause or one of the contributing causes of plaintiff's injuries," etc. This is misleading in that it seems to direct the jury to find against appellant for some reason other than that his negligence was the proximate cause of respondent's injuries. "The general rule is that damages, to be recoverable, must be the natural and also the proximate consequence of the wrongful act. Keeping in view that proximate, as here used, means closeness of causal connection, and not nearness in time or distance, and that its office is to qualify the generality of the idea expressed by natural, this definition, as a general rule, is the best that can be adopted." [Delaware, etc., Railroad Co. v. Salmon, 39 N. J. L. 1. c. 308; Atkinson v. Transportation Co., 60 Wis. 1. c. 156, et seq.; Stepp v. Railroad, 85 Mo. 1. c. 233; Bishop on Non Contract Law, section 456; 1 Thompson's Com. on Neg., section 44; 1 Shearman & Redfield on Neg., sections 4, 5, 25.] The rule that the contributing or concurring negligence of third persons is no defense if defendant's negligence was nevertheless an efficient or proximate cause of the injury (Benjamin v. Street Railway, 133 Mo. 1. c. 291) is not applicable to this case, and the cases cited announcing that rule are not in point since there is no evidence of any cause of injury save appellant's or respondent's negligence. The phrase was Moon v. Transit Co. consequently erroneous for this additional reason, in that it authorized the jury to find for respondent though they might find appellant's negligence was not the proximate or efficient cause of injury. III. It is suggested some of the instructions are erroneous in that they assume respondent was injured. The general rule is that facts should not be assumed in instructing the jury. Whether on a retrial the fact of injury may be assumed without reversible error must depend upon the record then made and since there is no dispute as to the rule itself or the exceptions to it and the cause must be remanded on other grounds the assignment need not be further discussed. Likewise the assignment relating to the sufficiency of the evidence to support recovery for loss of plaintiff's wife's services is based upon objections easily obviated, if a right to recover exists, and therefore we refrain from a discussion of them, there being no real dispute as to the law applicable to this phase of the case. Also, in view of the result reached and a probable retrial, the question as to the excessiveness of the verdict need not be further considered. The judgment is reversed and the cause remanded. Roy, C., concurs. PER CURIAM.-The foregoing opinion of BLAIR, C., is adopted as the opinion of the court. All the judges concur. Sonnenfeld v. Rosenthal. FANNY SONNENFELD v. ISAAC B. ROSENTHAL, Appellant. Division Two, December 31, 1912. 1. COMPULSORY REFERENCE: Review of Facts. Where under the pleadings, in a cause involving numerous items of indebtedness and counterclaim, a reference is properly compelled, the findings of facts may be reviewed on appeal. 2. WRITTEN CONTRACT: Expanded by Oral Evidence: Loans. It is not permissible to expand a written contract by oral evidence. Where plaintiff declared on a written contract for loans to be made during the year 1891 she cannot recover on loans made after December 31, 1891-there being no evidence, oral or written, to modify the written contract as executed. The loans made after that date constitute a mere open account. 3. OPEN ACCOUNTS: Loans: Limitations. Whether or not open accounts of loans made were barred by the five-year Statute of Limitations or saved from the bar by certain payments, will not be decided, where there is no substantial evidence that the loans were made. 4. 5. 6. : Book Account: Carried in Name of Another. The book of the Sonnenfeld Millinery Company, a corporation, whose certificates of stock plaintiff owned and whose manager was Adolph Rosenthal, showing loans to "Adolph Rosenthal, Special," were not competent evidence to establish loans made by plaintiff to defendant I. B. Rosenthal. : -: Cash Drawer Slips: Extract Copies. Copies of slips of paper kept in the cash drawer of such corporation, purporting to show loans to said defendant, which are not exact copies of the slips, but only extracts from such slips of items taken from the original slips, from which various items which may explain or qualify the items copied are omitted, are not competent evidence. : Evidence Not Preserved on Appeal. The burden is on the appellant, to show that the judgment of the trial court, adjudging that plaintiff has loaned him a named sum on open account, was not supported by the evidence; and where appellant has not brought up an abstract of the book account pertaining to the loans, and there is substantial oral evidence showing they were made, the appellate court cannot say the judgment in that regard is erroneous. |