insists that the acts of the Keeley Ice Cream Company, in participating in this parade and distributing candy in the manner it did, were lawful; that the happening of the accident could not be foreseen, and was not the usual and ordinary result of the acts complained of, but that the injury, if any, sustained by plaintiff, was the result of an intermediate cause in no way directly connected with defendant's acts.

It could subserve no good purpose to here attempt to set out the various definitions and distinctions stated by courts and text-writers of what is and what is not the proximate cause producing an injury. Most authorities agree that the term "proximate cause" is not susceptible of a definite, comprehensive definition, and conclude that each case, to a very large extent, must be determined on its own peculiar facts.

In 1 Shearm. & Redf. Neg. 6th ed. § 26a, it is said: "It is uniformly held that to be actionable it is not requisite that the injury should be the necessary or the direct or immediate result of the wrongful act or omission. Nor is it requisite that it should be the 'usual,' 'ordinary,' or 'probable' result. But it is often said, as an assignment of a reason, among others, for the particular decision, that the injury is or is not the 'usual,' 'ordinary,' or 'probable' consequence of the neglect, and hence such as could or could not have been reasonably foreseen. If the injury is a natural result of the neglect of duty it is sufficient. The injury, where actionable, generally is the 'usual,' 'ordinary,' or 'probable' result, and when it is so it is also such as could have been foreseen by one of ordinary prudence in the defendant's position at the time as probable. . . . The term 'natural' as used in the general rule, rightly understood, means according to the operation of natural laws, which, in the particular case, may be unusual and extraordinary in common experience. If it were otherwise, because one had often been

guilty of some breach of duty without entailing injurious consequences, he must be held not responsible when it does occur. We are acquainted with no well-considered case holding that injurious consequences, otherwise the natural and proximate result of the defendant's negligence, are not so unless they are the usual, ordinary, or probable result, and such as are capable of being foreseen. To so hold would be indeed to formulate a new rule by the substitution of these terms for natural and proximate."

The supreme court of Iowa, in Burk v. Creamery Package Mfg. Co. 126 Iowa, 736, 106 Am. St. Rep. 377, 102 N. W. 795, 18 Am. Neg. Rep. 62, said: "With reference to these, and to all other cases bearing upon the subject, it may be said that no one has as yet given a very satisfactory definition of 'proximate cause.' Indeed, one must of necessity look to practical distinctions on this subject, rather than to merely academic or theoretical ones, and, after all is said, each case must be decided largely on the special facts belonging to it."

In Bole v. Pittsburgh Athletic Co. 46 L.R.A. (N.S.) 602, 123 C. C. A. 538, 205 Fed. at page 470, the circuit court of appeals, third circuit, in considering the rule "causa proxima, non remota spectatur," says: "It would answer no good purpose to indulge in the subtleties of abstract reasoning to which this maxim so often gives rise. In its juridical sense, it would seem incapable of such definition as would furnish a practical test of liability or nonliability in a given case. The terms used do not accurately connote the conceptions they are intended to cover. Whether 'proximate' means 'nearest' in point of time or space to the result complained of depends upon circumstances. 'Primary' may sometimes better describe the efficient or responsible cause of a legal liability,-though first, and in point of time the most remote. In many, if not in most, cases, that cause of an injury to

which legal liability attaches may be better described as the 'efficient' cause. So many elements, however, may enter into the determination of what is the efficient cause, and so long a train of antecedents may come under consideration, 'but for' the happening of any one of which the result complained of would not have occurred, that we may still be involved in the difficulties of selecting from the train of antecedents the one to which should attach the legal liability sought to be imposed. The practical application of the rule must depend upon the upon the circumstances of each individual case."

The opinion in that case strongly supports the contention of plaintiff in the instant case, that the question of responsibility of defendant for the injury to plaintiff should have been left to the jury.

The Supreme Court of the United States, in discussing the question here under consideration, in Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, at page 474, 24 L. ed. 256, 258, says: "The true rule is, that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. 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, or as in the oft-cited case of the squib thrown in the market place. Scott v. Shepherd, 2 W. Bl. 892, 96 Eng. Reprint, 525. 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? It is admitted that the rule is difficult of application. But

it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."

In Anderson v. Bransford, 39 Utah, 256, 116 Pac. 1023, in the course of the opinion, this language is found: "It is true that the question of proximate cause is ordinarily one of fact for the jury. This is so because of different conclusions generally arising on a conflict of the evidence, or because of different deductions or inferences arising from undisputed facts, in respect to the question of whether the injury was the natural and probable consequence of the proved negligence or wrongful act, and ought to have been foreseen in the light of the attending circumstances. Where, however, there is no such conflict, and where but one deduction or inference under the evidence is permissible, then the question of proximate cause is one of law."

Now let us apply these general statements found in the foregoing cases to the particular facts disclosed by this record.

The defendant had under its control the distribution of the candy from its float. If, in the distribution in the manner it had selected, such distribution resulted in causing conduct on the part of these young boys which might result in or cause injury, a situation, in our judgment, is presented, which should have been submitted to the jury under proper instructions, to determine whether the injury to plain- Trial-questiff was caused by tion for jurythe negligence of de- fections from fendant, and wheth- float as proxier such negligent injury to byacts were the proximate cause of plaintiff's injury. The plaintiff was not a trespasser, nor was she unlawfully upon the street at the time the injury oc

throwing con

mate cause of

stander.

of courts must be considered in connection with the facts of the case then under consideration. The facts in the Edgar Case are in no way analogous to the facts in the instant case. It may be seriously doubted whether the doctrine of proximate cause was the controlling or decisive question in that case. Mr. Justice Straup, in a concurring opinion, says: "I think the decisive question is insufficiency of evidence to charge the defendant with the commission of the acts of negligence alleged in the complaint, rather than the proximate or intervening cause of injury. On that ground I concur in the judgment of affirmance."

In any event, the facts there under consideration do not make the opinion a binding authority in the present case. The same may be said in the case of Anderson v. Bransford, supra.

Among other cases cited by defendant are Snyder v. Colorado Springs & C. C. D. R. Co. 36 Colo. 288, 8 L.R.A. (N.S.) 781, 118 Am. St. Rep. 110, 85 Pac. 686; 20 Am. Neg. Rep. 23; Moody v. Gulf Ref. Co. 142 Tenn. 280, 8 A.L.R. 1243, 218 S. W. 817; Cole v. German Sav. & Loan Soc. 63 L.R.A. 416, 124 Fed. 113, 59 C. C. A. 593. These cases are readily distinguishable from the instant case. The difference or distinction, in our judgment, is this: The acts or conduct of the party or parties that immediately resulted in the injuries in those cases were not induced or set in motion by any act or conduct of the defendants. Certain language used by the supreme court of Colorado in the case of Snyder v. Colorado Springs & C. C. D. R. Co. supra, clearly indicate the distinction. In the opinion it is said: "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 facts, as they appear from the opinion in that case, were that the plaintiff, who was a passenger in a

crowded car on defendant's railway, was resting his hand on the jamb of the door. People were standing between him and the door, and some were standing on the steps. The conductor, in pushing his way through the crowd, pressed plaintiff against a third person on a seat, and that person in turn gave plaintiff a push, throwing him from the car. It will thus be seen in that case nothing defendant did actually put the irate passenger in action. In the instant case the acts of defendant in throwing the candy put the boys in action.

Error is assigned because of the giving by the court of instructions numbered 12 and 13.

The effect of instruction No. 12 is that the law places upon pedestrians, who leave the sidewalk and enter upon that portion of a street commonly used and intended for vehicles, the duty of continuous observation and care to protect themselves from injury. The court had submitted to the jury the question whether plaintiff had suffered injury to the face or eye, by being hit with a piece of candy thrown from defendant's float, concerning which there had been some testimony. It is no doubt true that instruction No. 12 was intended to have some bearing upon this particular question. Otherwise we are unable to find any testimony in in the Appeal-instrucrecord that called tion-duty of one for that instruction or any like instruction. In any event, the giving of it did not constitute prejudicial error.

in roadway.

The complaint respecting instruction No. 13 relates particularly to that part reading: "That the bystanders, including the plaintiff. who had voluntarily congregated for the purpose of witnessing said parade, assumed the risk of all ordinary dangers incident to such a parade, and if you find that plaintiff's injury, if any, was the result of such an ordinary danger, then I instruct you that she assumed the risk thereof and cannot recover."

That instruction was doubtless in

The discussion in this annotation includes all cases concerning the liability of one who causes the collection of, or disorder in, a crowd, for injuries incident thereto, with the exception of cases dealing with the liability of a carrier. Cases are also excluded which deal with the liability of one who allows his premises to be so used that a crowd congregates to the injury of the neighbrhood, as being a nuisance.

There does not appear to be any other case similar to the reported case (SHAFER V. KEELEY ICE CREAM Co. ante, 1523), in regard to injury to one watching a parade, from disorder caused in the crowd by one of the participants in the parade. In the reported case it will be noted that it is held that the disorder caused in the crowd by the defendant's agents was the proximate cause of the plaintiff's injuries, for which the defendant was liable. The rule that the one who is responsible for disorder in a crowd is liable for the injuries suffered by a member of the crowd was also applied in Stamp v. Eighty-Sixth Street Amusement Co. (1916) 9 Misc. 599, 159 N. Y. Supp. 683, and in Mastad v. Swedish Brethren (1901) 83 Minn. 40, 53 L.R.A. 803, 85 Am. St. Rep. 446, 85 N. W. 913.

Stamp v. Eighty-Sixth Street Amusement Co. (N. Y.) supra, was an action to recover for injuries alleged to have been suffered by the plaintiff when caught in the rush of a theater audience, resulting from panic at the escape of some trained lions which had been performing. The defendant contended that it was not the owner of the lions, and therefore not guilty of negligence in regard to their escape. However, the court held that the defendant had procured the lions, and thus had taken part in the maintenance of a public nuisance, for which it could be held liable, and further said: "It is also urged that, since the plaintiff's wife was injured by the panic-stricken crowd, and not by the lions directly, the injuries were not, in a legal sense, caused by the lions. The panic of the crowd was, however, directly caused by the natural fear of an unsecured vicious animal, and was a result which might well have been foreseen by the defendant."

The question of proximate cause also appeared in Bole v. Pittsburgh Athletic Co. (1913) 46 L.R.A. (N.S.) 602, 123 C. C. A. 536, 205 Fed. 468. In that case it appeared that the defendant maintained a baseball park; that on a certain day it was conducting a baseball game, to see which a