The com ize was not merely to inculcate a creed or to We are inclined to think that the evidence establish a form of worship, but was also in- was not sufficient to support a finding that tended for the treatment and cure of dis- the corporation itself was to be one for profcase, through the healers which it is to it. There was proof that the individual train and constitute; that the method to be healers, who are constituted and sent out by pursued by these healers in curing the sick the society, do receive compensation for is simply and solely by inaudible prayer, their services; but this seems to be a perwhether in the presence of the sick or at a sonal recompense, with which the society has distance being immaterial; that to qualify nothing to do. But the court below, in its for the practice of healing disease according supplemental opinion, went beyond this to this method nothing was necessary except question, and adopted in substance the conthe study of the system taught in Mrs. Ed-clusion of the master that the practice of dy's book, no knowledge of anatomy, physi- the art of healing or curing disease in the ology, pathology, or hygiene being required, manner set forth in Mrs. Eddy's book is and the fundamental principle of the teach-injurious to the community, because it is ing of Mrs. Eddy being that what is termed opposed to the general policy of the law of "disease" has no real existence; that "sick- Pennsylvania relative to the existence and ness, sin, and death are unknown to truth, treatment of disease. It was the duty of and should not be recognized by man as the court below to refuse the charter, if, in reality." According to the testimony she the exercise of sound legal discretion, he teaches that inflammation, tuberculosis, found its purpose, in whole or part, included hemorrhage, and decomposition are beliefs, anything injurious to the community. Can and not real facts. The master points out it be said that there was an abuse of disthat this theory is directly opposed to the cretion in the finding of this case? We are general spirit and purpose of the laws of not to consider the matter from either a Pennsylvania with regard to the public theological or metaphysical standpoint, but health and the treatment of disease, and only in its practical aspects. It is not a that the quarantine and inspection laws, and question as to how far prayer for the recovthe enactments designed to prevent conta-ery of the sick may be efficacious. gion and infection, are all based upon the mon faith of mankind relies not only upon theory that disease is a reality and that it prayer, but upon the use of means which exists without reference to the condition of knowledge and experience have shown to be mind of its subject. The master reaches the efficient; and when the results of this knowlconclusion that "it would be injurious to the edge and experience have been crystalized community to incorporate a group of citi- into legislative enactments declarative of zens who would teach the doctrine that what the good of the community requires in there is no such thing as a contagious dis- the treatment of disease, and of the qualificase, or any disease, and practise the art of cations of those who publicly deal with discuring what are called 'contagious diseases' ease, anything in opposition thereto may in the manner above described." He further fairly be taken as injurious to the communirefers to the established policy of the com- ty. Our laws recognize disease as a grim monwealth, which, in the interest of the reality, to be met and grappled with as such. public good, requires certain qualifications To secure the safety and protect the health in persons who presume to treat and cure of the public from the acts of incompetent disease, and he tersely adds: "What the persons, the law prescribes the qualifications good of the community requires under the of those who shall be allowed to attempt the law as it exists ought not to be imperiled by cure or healing of disease. It is not for the the incorporation of a group of citizens purpose of compelling the use of any particwhose fundamental doctrine is that the pub-ular remedies, or of any remedies at all. lic good requires no such thing." He there- It is only designed to secure competent fore recommended that the application for the charter be refused. The court below did refuse to approve the charter, and filed a short opinion, basing the refusal upon the ground that the proposed incorporation was, in part, at least, for profit. Afterwards, in a supplemental opinion, he summarized and adopted the findings of the master, and re-icy of the law to assume control, and refused his sanction to the charter upon the quire the use of the most effective known ground that the purpose disclosed was im- means to overcome and stamp out disease, proper and in violation of the law, which which otherwise would become epidemic. In was intended to prevent the practice of med-such cases, failure to treat, or an attempt icine by nonqualified persons. service for those who desire to obtain medical attendance. In certain diseases the individual affected may be the only one to suffer for lack of proper attention; but in other types, of a contagious or infectious nature, they may be such as to endanger the whole community. And here it is the pol to treat by those not possessing the lawful qualifications, is equally violative of the policy of the law. It may be said that the wisdom or the folly of depending upon the power of inaudible prayer alone, in the cure of disease, is for the parties who invoke such a remedy. But this is not wholly true; "for none of us liveth to himself, and no man dieth to himself," and the consequence of leaving disease to run unchecked in the community is so serious that sound public policy forbids it. Neither the law nor reason has any objection to the offering of prayer for the recovery of the sick. But in many cases both law and common sense require the use of other means which have been given to us for the healing of sickness and the cure of disease. There is ample room for the office of prayer, in seeking for the blessing of restored health, even when we have faithfully and conscientiously used all the means known to the science and art of medicine. The findings of fact by the learned master, and his conclusions of law therefrom, and the opinion of the court below, in which they are summarized and approved, vindicate the action taken. Under the well-defined policy of the law of Pennsylvania, as at present existing, we are satisfied that there was no abuse of sound legal discretion in refusing the application for a charter. The appeal is quashed, and the order refusing to approve the charter is affirmed. UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT. Viola COLE, Plff. in' Err., v. GERMAN SAVINGS & LOAN SOCIETY. (59 C. C. A. 593, 124 Fed. 113.) 1. An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. 2. But an injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. 3. An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, and that probably would not have resulted from it had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable; and such an act of negligence is the remote cause, and the independent intervening cause is the proximate cause, of the injury. 4. It is no defense to an action for damages for an injury of which the act or omission of the defendant was the proximate cause that the negligent or wrongful act of another concurred with the recklessness of the defendant to produce the untoward result. 5. But the concurring negligence of another cannot transform the re *Headnotes by SANBORN, Circuit Judge. NOTE. As to effect of intervening cause on liability for negligence, see cases in notes to Smith v. Kanawha County Court, 8 L. R. A. 82, and Smithwick v. Hall & U. Co. 12 L. R. A. 279; also Pennsylvania R. Co. v. Hammill, 24 L. R. A. 531; Goodlander Mill Co. v. Standard Oil Co. 27 L. R. A. 583; Stone v. Boston & A. R. Co. 41 L. R. A. 794; and Southern R. Co. v. Webb, 59 L. R. A. 109. The mote into the proximate cause of an injury, or create or increase the liability of the defendant. It cannot make an injury which was not the natural and probable result of the negligent acts or omissions of the defendant their natural and probable consequence. No act contributes to an injury, in the legal acceptation of that term, unless it is a proximate cause of that injury, and no one is liable for an injury unless it was the natural and probable result of his act. 6. The plaintiff entered and passed along a hall in the building of the defendant to take the elevator, the well or shaft of which opened into the hall. A boy, who was a stranger to her and to the defendant, hurried past her in the hall, pushed the sliding door of the well of the elevator, which was open from 1 to 10 inches, back as far as it would go, and stepped back. The plaintiff supposed this boy was the operator of the elevator, and stepped in. elevator was at an upper floor in charge of its regular operator, and plaintiff fell to the The. bottom of the well and was injured. hall was so dark that it was difficult, but not impossible, to see the elevator when it was at the lower floor, and when it was not there nothing but darkness was visible in the well. The strange boy had been seen by witnesses riding and visiting on the elevator a dozen times and endeavoring to operate it once. The door of the shaft or well could be opened from the outside, when it was latched, by lifting and sliding it. It would bound open from 1 to 10 inches when the operator jammed it, and it was often left open to that extent. Held, the negligent acts and omissions of the defendant were not, and those of the strange boy were, the proximate cause of the injury. The latter constituted an independent intervening cause, which interrupted the natural sequence of events between the negligence of the defendant and the injury of the plaintiff, insulated the defendant's negligence from the plaintiff's hurt, broke the casual connection between them, and produced her injury. 7. The act of the strange boy could not | plaintiff supposed that the strange boy was be foreseen or reasonably anticipated the operator of the elevator, stepped into as the probable result of the negligent acts or omissions of the defendant. A violation of law or duty by a third party, when not 8. There is always a preliminary ques- cause of an injury? is ordinarily a ques tion for the jury. But the burden is always on the plaintiff, in an action for personal injury, to show that the negligence charged was the proximate cause of the injury; and where, at the close of the trial, there is no substantial evidence upon which the jury can properly find that the defendant's negligence was the proximate cause of the injury, it is the duty of the court, as it is in a like condition of the evidence in the trial of other issues of fact, to peremptorily instruct the jury to return a verdict for the defendant. (July 23, 1903.) the shaft, and fell 102 feet to its bottom, and was seriously injured. The hall was dark and gloomy. It was difficult to see the elevator at the lower floor, but it was not impossible to see it. When it was not at that floor, nothing but darkness was visible in the well below it. There was no artificial light in the hall at the time of the accident, although there were the means to make an electric light, which was often lighted, just in front of the door of the shaft. This door was furnished with a it hook, which, when the door was closed, entered a slot and grasped a bar. But the door couid be opened from the outside, even when it was latched, by lifting it and pushing it back. When the employee in charge of the elevator jammed the door, would bound back and slide open from 1 to 10 inches. The court instructed the jury, upon this state of facts, to return a verdict for the defendant, and this charge, together with certain rulings rejecting proffered testimony, is assigned as error. Argued before Sanborn, Thayer, and Van ERROR to the Circuit Court of the United Devanter, Circuit Judges. States for the District of Utah to review a judgment in favor of defendant in an action brought to recover damages for personal injuries alleged to have resulted from defendant's negligence. Affirmed. Messrs. Hiram H. Henderson and Herbert R. MacMillan, for plaintiff in error: 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, 474, 476, 24 L. ed. 256, 258, 259; Missouri P. R. Co. v. Moseley, 6 C C. A. 641, 12 U. S. App. 601, 57 Fed. 925. The proximate cause of this accident could only be determined after the introduction of evidence tending to show negligence on the part of the defendant in the manner in which it conducted its building, hallway, light, elevator, door, and shaft, and permitted its elevator boy and third parties to operate the same. Colorado Mortg. & Invest. Co. v. Rees, 21 Colo. 435, 42 Pac. 44; Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98; Ft. Wayne v. Coombs, 107 Ind. 75, 57 Am. Rep. 82, 7 N. E. Statement by Sanborn, Circuit Judge: The plaintiff, Viola Cole, sued the German Savings & Loan Society for damages which she alleged were the result of its negligence in the care and operation of its elevator, and at the close of the trial these facts were established: About 4 o'clock in the afternoon of a bright sunshiny day in May, the plaintiff, a lady thirty-two years of age, entered the hall of a building of the German Savings & Loan Society for the purpose of riding on an elevator to an upper story. The well of this elevator was about 40 feet distant from the entrance to the hall, into which it opened. It was separated from the hall by a door, which at the time was stand-743; Wooley v. Grand Street & N. R. Co. 83 ing open not more than 10 inches. As the plaintiff passed through this hall, a boy who was a stranger to her, and who was not employed by or authorized to act for the defendant, but who had been seen by one of the witnesses prior to that time endeavoring| to operate the elevator once, and riding upon it and visiting the boy in charge of it a dozen times, hurriedly passed the plaintiff, seized the sliding door to the elevator shaft, pushed it back as far as it would go, and stepped back. The elevator was at an upper story in charge of its regular operator. The N. Y. 121; Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Phelps v. Winona & St. P. R. Co. 37 Minn. 485, 5 Am. St. Rep. 867, 35 N. W. 273; Augusta v. Hafers, 61 Ga. 48, 34 Am. Rep. 95; Kent v. Lincoln, 32 Vt. 591; Crocker v. McGregor, 76 Me. 282, 49 Am. Rep. 611; Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55; Chicago v. Powers, 42 Ill. 169, 89 Am. Dec. 418; Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. ed. 356; Morse v. Minneapolis & St. L. R. Co. 30 Minn. 465, 16 N. W. 358. By maintaining a light in its hall, or by maintaining a proper and secure door, or by | 620, Affirming 17 Jones & S. 304; Tousey v. prohibiting this boy and other third parties Roberts, 114 N. Y. 312, 11 Am. St. Rep. from riding in the elevator and operating G55, 21 N. E. 399; Peoples' Bank v. Morgothe same together with the door, and fre- lofski, 75 Md. 432, 32 Am. St. Rep. 403, 23 quenting said building, as they had done Atl. 1027; Colorado Mortg. & Invest. Co. v. for a long period of time, or by prohibiting Rees, 21 Colo. 435, 42 Pac. 42. these third parties from customarily performing acts which would lead a patron to believe they were employees on the elevator, defendant could have prevented this accident; and it was a question for the jury to determine whether its negligence in failing to do any or all of these acis was the proximate cause of this accident, or whether the act of the third party or boy who opened the door was the proximate cause, or whether the accident was the result of concurring causes. Colorado Mortg. & Invest. Co. v. Rees, 21 Colo. 435, 42 Pac. 42; Burrell Twp. v. Uncapher, 117 Pa. 353, 2 Am. St. Rep. 664, 2 Atl. 619; Heister v. Fawn Twp. 189 Pa. 253, 42 Atl. 121; Hubbell v. Yonkers, 104 N. Y. 434, 58 Am. Rep. 522, 10 N. E. 858; Webster v. Hudson River R. Co. 38 N. Y. 260; Campbell v. Stillwater, 32 Minn. 308, 50 Am. Rep. 569, 20 N. W. 320; Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267; Simmons v. New Bedford, V. & N. S. B. Co. 97 Mass. 361, 93 Am. Dec. 99; Lake v. Milliken, 62 Me. 240, 16 Am. Rep. 456; Clark v. Chambers, L. R. 3 Q. B. Div. 327; Pierce v. Conners, 20 Colo. 178, 46 Am. St. Rep. 279, 37 Pac. 721; Knouff v. Logansport, 26 Ind. App. 202, 84 Am. St. Rep. 292, 59 N. E. 347; Tousey v. Roberts, 114 N. Y. 312, 11 Am. St. Rep. 655, 21 N. E. 400. The question in all such cases is whether the facts shown constitute a continuous suecession of events, so linked together as to make a natural whole, or whether a new and independent cause intervened between the wrong and the injury. The intervening cause must be one not produced by the alleged wrongful act or omission, but independent of it, and adequate to produce the result in question. Ray, Negligence of Imposed Duties, 699; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256; Purcell v. St. Paul City R. Co. 48 Minn. 134, 16 L. R. A. 203, 50 N. W. 1034; Mahogany v. Ward, 16 R. I. 479, 27 Am. St. Rep. 753, 17 Atl. 860; St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448, 62 N. W. 889. No wrongdoer ought to be allowed to apportion or qualify his own wrong; and, as a loss has actually happened while his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. Davis v. Garrett, 6 Bing. 716; Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 45 Am. Rep. 30, 15 N. W. 69. The defendant was, as are all landlords transporting persons by elevators from one The proximate cause is not always, or level to another, a common carrier, and generally, the act or omission nearest in there can be no distinction in principle betime or place to the effect it produces. tween the degree of care required of such a common carrier and of one who carries by means of a railroad. Union P. R. Co. v. Callaghan, 6 C. C. A. 205, 12 U. S. App. 541, 56 Fed. 991; Travelers' Ins. Co. v. Melick, 27 L. R. A. 629, 12 C. C. A. 544, 27 U. S. App. 547, 65 Fed. 180; Southern P. Co. v. Yeargin, 48 C. C. A. 497, 109 Fed. 438; St. Louis, I. M. & S. R. Co. v. Needham, 16 C. C. A. 457, 32 U. S. App. 635, 69 Fed. 825; Marine Ins. Co. v. St. Louis, I. M. & S. R. Co. 41 Fed. 651; Western U. Teleg. Co. v. Morris, 28 C. C. A. 56, 55 U. S. App. 211, 83 Fed. 992. If the defendant's negligence concurred with some other event (other than the plaintiff's fault) to produce the plaintiff's injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time. The Joseph B. Thomas, 81 Fed. 578; 2 Thomp. Neg. p. 1085; Shearm. & Redf. Neg. 5th ed. § 719a; Dawson v. Sloane, 100 N. Y. Mitchell v. Marker, 25 L. R. A. 33. 10 C. C. A. 306, 22 U. S. App. 325, 62 Fed. 139, 54 Fed. 638; Treadwell v. Whittier, 80 Cal. 574, 5 L. R. A. 498, 13 Am. St. Rep. 175, 22 Pac. 271; Shearm. & Redf. Neg. 5th ed. 719a, and note 5; Grimes v. Pennsylvania Co. 36 Fed. 72. Messrs. Frederick V. Brown, W. A. Kerr, and Edward F. Waite, for defendant in error: There was nothing in the surrounding circumstances or the experience of mankind to lead the most prudent and careful person to expect that some person was going deliberately to invite another to enter that shaft at a time when the closed door gave the most emphatic notice that it was not proper to enter. The defendant had a right to rely upon the closed door as a sufficient warning to everyone not to enter the shaft, and was not bound to anticipate the commis'sion of so notoriously reckless and wrongful an act as was committed by this boy in in- | Causa proxima, non remota, spectatur, and viting the plaintiff to enter under such cir cumstances. Henderson v. Dade Coal Co. 100 Ga. 568, 40 L. R. A. 95, 28 S. E. 251; O'Herron v. Gray, 168 Mass. 573, 40 L. R. A. 498, 60 Am. St. Rep. 411, 47 N. E. 429. The accident was not a probable consequence of any cause for which the defendant is responsible; and in this case the question was for the court. Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469-475, 24 L. ed. 256-259; 1 Thomp. Neg. § 57; Stone v. Boston & A. R. Co. 171 Mass. 536, 41 L. R. A. 794, 51 N. E. 1; Missouri P. R. Co. v. Moseley, 6 C. C. A. 641, 12 U. S. App. 601, 57 Fed. 921; Goodlander Mill Co. v. Standard Oil Co. 27 L. R. A. 583, 11 C. C. A. 253, 24 U. S. App. 7, 63 Fed. 400; Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469, 472, 35 L. ed 213215, 11 Sup. Ct. Rep. 569; Union P. R. Co. v. McDonald, 152 U. S. 262, 38 L. ed. 434, 14 Sup. Ct. Rep. 619; Motey v. Pickle Marble & Granite Co. 20 C. C. A. 366, 36 U. S. App. 682, 74 Fed. 155; West Mahanoy Twp. v. Watson, 112 Pa. 574, 56 Am. Rep. 336, 3 Atl. 866, 116 Pa. 344, 2 Am. St. Rep. 604, 9 Atl. 430; Bunting v. Hogsett, 139 Pa. 363, 12 L. R. A. 268, 23 Am. St. Rep. 192, 21 Atl. 31, 33, 34; Southside Pass. R. Co. v. Trich, 117 Pa. 390, 2 Am. St. Rep. 672, 11 Atl. 627; Behling v. Southwest Pennsylvania Pipe Lines, 160 Pa. 359, 40 Am. St. Rep. 724, 28 Atl. 777; Schwartz v. Shull, 45 W. Va. 405, 31 S. E. 914. The sole proximate cause of the accident was an independent, efficient, and responsible event intervening between any possible cause set in motion by the defendant and the accident. Malloy v. New York Real Estate Asso. 156 N. Y. 205, 41 L. R. A. 487, 50 N. E. 853; Doherty v. Waltham, 4 Gray, 596; Parker v. Cohoes, 10 Hun, 531; Missouri P. R. Co. v. Columbia, 65 Kan. 390, 58 L. R. A. 399, 69 Pac. 338; Stone v. Boston & A. R. Co. 171 Mass. 536, 41 L. R. A. 794, 51 N. E. 1; Tutein v. Hurley, 98 Mass. 211, 93 Am. Dec. 154; Andrews v. Kinsel, 114 Ga. 390, 88 Am. St. Rep. 25, 40 S. E. 30; La Londe v. Peake, 82 Minn. 124, 84 N. W. 726; Wharton, Neg. 2d ed. § 134; Cooley, Torts, 2d ed. p. 76; Shearm. & Redf. Neg. § 32; Southern P. R. Co. v. Yeargin, 48 C. C. A. 497, 109 Fed. 444. those damages which are the result of remote causes form a part of that large mass of resulting losses styled damnum absque injuria, for which the law permits no recovery. A clear conception of the test which distinguishes the proximate from the remote cause is, therefore, the first and the indispensable prerequisite to a true answer to the question which this case presents; for by that test alone must the issue here, in all the varying garbs in which the ingenuity of counsel has clothed it, be tried and be ultimately determined. This test is most clearly seen from the standpoint of the injury inflicted, and is well disclosed by these indisputable principles of the law: An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, and that would not have resulted from it, had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate, cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it, the result which may be reasonably anticipated from it. A probable consequence is one that is more likely to follow its supposed cause than it is to fail to follow it. Chicago, St. P. M. & O. R. Co. v. Elliott, 20 L. R. A. 582, 5 C. C. A. 347, 350, 12 U. S. App. 381, 55 Fed. 949, 952; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 475, 24 L. ed. 256, 259; Hoag v. Lake Shore & M. S. R. Co. 85 Pa. 293, 298, 299, 27 Am. Rep. 653. Let us try the issue in hand by these familiar rules. It goes without saying that the injury of the plaintiff was the natural and probable consequence of the act of the trespasser who preceded the plaintiff to the elevator, opened the door of the well, and stepped back, thus inviting her to pass into the shaft. No one can contemplate this act Sanborn, Circuit Judge, delivered the for a moment without a clear conviction that opinion of the court: The crucial question in this case is whether or not the negligence of the defendant was the proximate cause of the injury of the plaintiff, so that, in the legal acceptation of that term, it contributed to her hurt. the fall and the injury were its natural and probable result. This act was, therefore, a proximate cause of the injury, an act of negligence which formed the basis for an action for damages against the strange boy who committed it. It was not only the near |