Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
result would be to injure one on the platform at no greater distance from its scene than was the
plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken
glass, by wreckage of machines or structures no one could say. But injury in some form was most
probable.
Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were
not the proximate result of the negligence. That is all we have before us. The court refused to so
charge. No request was made to submit the matter to the jury as a question of fact, even would
that have been proper upon the record before us.
The judgment appealed from should be affirmed, with costs.
Notes
1. Cardozo versus Andrews. Are Judges Cardozo and Andrews debating how to define
proximate cause or whether this is a case about proximate cause? What is it, precisely, that
divides them?
2. Where’s the negligence? Was the guard’s act in pushing the passenger negligent in the
first place if he could not have possibly known that the package contained explosives, as both
Justices Cardozo and Andrews concede? Would Cardozo vote differently if the package had been
labeled “WARNING: CONTAINS EXPLOSIVES”?
3. Cardozo’s inconsistency? Judge Cardozo, the author of the majority opinion in Palsgraf,
reached a different conclusion when asked whether a defendant is liable for harm that befalls the
rescuer of someone the defendant injured. What, if anything, distinguishes Palsgraf from the next
case?
Wagner v. International R. Co., 232 N.Y. 176, 178-182 (N.Y. 1921)
CARDOZO, J.
The defendant operates an electric railway between Buffalo and Niagara Falls. There is a
point on its line where an overhead crossing carries its tracks above those of the New York
Central and the Erie. A gradual incline upwards over a trestle [a supporting structure for a bridge]
raises the tracks to a height of twenty-five feet. A turn is then made to the left at an angle of from
sixty-four to eighty-four degrees. After making this turn, the line passes over a bridge, which is
about one hundred and fifty-eight feet long from one abutment to the other. Then comes a turn to
the right at about the same angle down the same kind of an incline to grade. Above the trestles,
the tracks are laid on ties, unguarded at the ends. There is thus an overhang of the cars, which is
accentuated at curves. On the bridge, a narrow footpath runs between the tracks, and beyond the
line of overhang there are tie rods and a protecting rail.
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