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Colo. 228; Rico Red. etc. Co. v. Musgrave, 14 Colo. 79; Brunswick v. Winter's Heirs, 3 N. Mex. 24.

The judgment is reversed.

The Chief Justice and Mr. Justice Campbell concur.

Cotenancy in Mines is the subject of a note to Cedar Canyon Con. Min. Co. v. Yarwood, 91 Am. St. Rep. 851.

The Liability of One Cotenant to another for rents and profits received from and for expenditures made upon the common property is the subject of a note to Ward v. Ward, 52 Am. St. Rep. 924. Compensation for improvements made on property owned in common is further discussed in the note to Cleland v. Clark, 81 Am. St. Rep. 185.



[36 Colo. 288, 81 Pac. 686.]

Cause.—If a

conductor, in pushing his way through a crowded car, presses a standing passenger against a seated passenger, who gives the standing passenger such a push as to throw him from the car, to his great injury, the proximate cause thereof is the action of the seated passenger, and the railroad company is not liable therefor. (p. 112.)

J. J. McFeely, for the plaintiff in error.

E. E. Whitted, P. H. Holme and Lunt, Brooks & Wilcox, for the defendant in error.

289 BAILEY, J. This is an action by plaintiff against defendant to recover for injuries received by plaintiff while traveling on defendant's cars as a regular passenger, going from the city of Cripple Creek to a station known as Midway. At the close of plaintiff's testimony, the court, upon motion of defendant, instructed the jury to return a verdict in favor of the defendant, which was done.

The case comes here upon error, and the error assigned is this instruction and verdict.

There is no dispute as to the facts, which appear to be that, on the night of December 20, 1900, plaintiff was a passenger on defendant's car, going from Cripple Creek to Midway. He had paid his fare, the car was crowded, and, after leaving Fairview, plaintiff was standing near the door, with his hand

resting on the door jamb. There were people between plaintiff and the door, some upon the steps. The head of the man upon the lower step reached to about the thigh of the plaintiff. The conductor, in pushing his way through the crowd, pressed plaintiff against a party who was sitting in a seat on the side of the car. This man became angry, said that he was "Getting tired of playing cushion for the electric line," and raised up against the plaintiff and gave a "surge," by the force of which plaintiff was thrown from the car, passing over the head of the man who stood upon the lower step.

In plaintiff's brief it is said, in effect, that the court below, in passing on the motion for nonsuit, 290 dwelt at considerable length upon the question as to what was the proximate cause of this accident. The court came to the conclusion that the proximate cause was the action of the passenger, and, therefore, the company was not liable.

So the question for us to determine is as to what was the proximate cause of the accident.

Proximate cause is: "That cause which, in natural and continued sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred': Denver etc. R. R. Co. v. Sipes, 26 Colo. 17, 55 Pac. 1093.

It was defined by the court of appeals as being "that cause which immediately precedes and directly produces an affect as distinguished from a remote, mediate or predisposing cause': Burlington etc. R. R. Co. v. Budin, 6 Colo. App. 275, 40 Pac. 503. "An act is the proximate cause of an event when, in the natural order of things, and under the particular circumstances surrounding it, such an act would necessarily produce that event": Burlington etc. R. R. Co. v. Budin, 6 Colo. App. 275, 40 Pac. 503.

"The law will not look back from the injurious consequence beyond the last sufficient cause, and especially that, where an intelligent and responsible human being has intervened between the original cause and the resulting damage": Stone v. Boston & A. R. Co., 171 Mass. 536, 41 N. E. 1, 41 L. R. A. 794.

"The nature of the intervening cause which will render an original cause for which the author is sought to be held liable in damages too remote for recovery must be simply such as interrupts the usual and ordinary and experienced sequence

of events, and produces consequences at variance therewith": Watson on Damages for Personal Injuries, sec. 7.

"If the original wrong only becomes injurious in consequence of the intervention of some distinct 291 wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote": Cooley on Torts, 70.

"The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening or contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen": Lane v. Atlantic Works, 111 Mass. 136.

"One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable": Stone v. Boston & A. R. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794; Burlington etc. R. R. Co. v. Budin, 6 Colo. App. 275, 40 Pac. 503.

Tried by these tests, the defendant is not responsible for the consequences of the passenger's act. There is nothing. to show that such a consequence as happened was liable to occur. It was, of course, possible, that some extremely nervous or irritable person would become angry because of his being inconvenienced on account of the crowded condition of the car, but it is not in accordance with the usual and ordinary course of events to anticipate that a seated passenger would so far lose control of himself on account of having a standing passenger crowded against him that he would eject the standing passenger from the car with such force as to throw him over the head of one who was standing upon the step below the party so ejected.

202 It is apparent from the record in this case that the proximate cause of the injury to plaintiff was the action of the irritated passenger, and that this cause could not be anticipated by defendant or its agents. The plaintiff, however, contends that this question should have been submitted to the jury. This course would have been necessary if material facts had been in dispute, but where, upon all the evidence,

the court is able to see that the resulting injury was now proximate but remote, the plaintiff fails to make out his case, and the court should so rule: Stone v. Boston & A. R. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794.

If the matter had been submitted to the jury and the verdiet had been rendered in favor of plaintiff, it would have been the duty of the court to set it aside. Consequently, it was his duty to direct the verdict: Chivington v. Colorado Springs Co., 9 Colo. 597, 14 Pac. 212.

The court having committed no error in sustaining the motion and directing the verdict, the judgment of the district court will be affirmed.

Chief Justice Gabbert and Mr. Justice Goddard concur.

The Doctrine of Proximate Cause is the subject of a note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 807. The general rule is, that if an injury results in consequence of a wrongful act, but only through or by means of some intervening cause, from which last cause the injury follows as a direct and immediate consequence, the law will refer the damage to the last proximate cause, and refuse to trace it to that which was more remote: Alabama Great Southern R. R. Co. v. Vail, 142 Ala. 134, 110 Am. St. Rep. 23; Georgetown Tel. Co. v. McCullough, 118 Ky. 182, 111 Am. St. Rep. 294; Little Rock Traction etc. Co. v. McCaskill, 75 Ark. 133, 112 Am. St. Rep. 48.


[36 Colo. 464, 85 Pac. 846.]

WILLS.-General Legacies are Such as are payable out of the general assets of the testator's estate, such as gifts of money or other things in quantity, and not in any way separated or distinguished from other things of like kind. (p. 115.)

WILLS.-Specific Legacies are gifts by will of specific articles, or particular parts of the testator's estate, which are identified and distinguished from all others of the same nature, and which are to be satisfied only by the delivery and receipt of the particular things given. (p. 115.)

WILLS-Demonstrative Legacies.-A demonstrative legacy partakes of the nature of both a general and specific legacy, and is a gift of money or other property charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case. the fund fails. (p. 115.)

Am. St. Rep., Vol. 118-8

WILLS-Legacies-Ademption.-A specific bequest is subject to ademption, but not so a general or a demonstrative legacy. (p. 115.)

WILLS-Legacies Interpretation of.-Courts are not inclined to favor specific legacies, and if compatible with the language employed, are disposed to interpret legacies as general or demonstrative; but if the language is clear, and plainly evinces an intent to create a specific legacy, such effect must be given to the language used. (p. 115.)

WILLS-Legacies-Interpretation of.-In ascertaining the nature of a legacy, the question is one of intent, to be gathered from the language used in creating it, in the light of the circumstances of the testator and the property he is disposing of in his will. (p. 115.) WILLS-Specific Legacies-Ademption.—If a testatrix by her will gives to five specified legatees the entire proceeds of an insurance policy on her husband's life, provided the money is actually received and collected by her executors, and she afterward collects the entire fund during her lifetime, and mingles it with her property generally, so that no part of it is traceable into her executor's hands, such legacies are specific, and by her act became adeemed. (p. 118.)

F. A. Williams, for the plaintiff in error.

Wolcott, Vaile & Waterman, H. H. Dunham and W. W. Field, for the defendants in error.

466 CAMPBELL, J. In this proceeding the plaintiffs in error asked for an interpretation of the second clause of the last will of Eliza C. Gallup, deceased, under which they claim as legatees. It reads:

"Second. Any and all sums of money which may at any time hereafter become due and payable to me or my estate, by or under any insurance policy upon the life of my husband Francis Gallup, which may heretofore have been insured, payable to me or in my favor, I will and bequeath to the five sisters of my said husband, or to such of them as may be living at the time any such insurance moneys shall be actually collected and received by my executors, to be divided equally among said sisters or the survivors of them, as hereinbefore provided."

The facts pertinent to the only question argued on this review are that before the execution of the will an insurance policy for five thousand dollars upon the life of Francis Gallup was issued. About a year after its execution he died, and the amount of the policy on his life (five thousand dollars) was received by the testatrix herself in her lifetime, which she commingled with her other funds, and afterward reinvested. Not only was this amount not actually collected or received by the executors, but it was not traceable or iden

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