award any damages in this case. On the other hand, if you find that the defendant company was negligent in not providing a reasonably safe place for the performance of the work, you should find for the plaintiff, and award her damages, provided that the negligence of the defendant in not providing such safe place was the cause of the accident, or contributed to the accident. To find for the plaintiff, it is not enough that you should find that the premises were unsafe, or that the defendant company was negligent, in that respect, in not providing a safe place. You must also find that the place was unsafe, and that the accident was brought about or contributed to by reason of that unsafe place. That is, if you should find that the act of the conductor was the sole, or if you should find that it was the proximate or the procuring, cause of the accident, then you should not award damages; but if you find that the accident was caused by the acts of the conductor and also by the negligence of the defendant company in not providing a safe place to do the work, then you should find damages for the plaintiff. In other words, in order to award damages to the plaintiff, you must find, first, that the defendant company was negligent in not providing a safe place to do the work, and that such negligence was the cause of the accident or contributed thereto. If you find the accident was brought about solely by the acts of the conductor, you should not award damages. If the acts of the conductor alone did not cause the accident, but the accident was contributed to by the negligence of the defendant company by not providing a safe place to work, then you should award damages. In determining this case, gentlemen, you should take into consideration all the evidence in the case. You are the sole judges of the evidence, or the weight to be given it, and of the credibility of the witnesses; and from the evidence before you you should determine these questions: First. Was the place where the deceased was working a reasonably safe place for the performance of the work to be done there a reasonably safe place considering the character of the work to be done and the character of the premises? Second. If you find it was not reasonably safe, and the defendant company was negligent in that respect, did that fact have anything to do with the accident, or was it caused by the negligence of the conductor of the train alone? If it was caused solely or

procured or brought about by the negligence of the conductor, then the defendant is not liable. If the negligence of the defendant company contributed to the accident, then the defendant is liable, provided the dead man himself was not guilty of any negligence which contributed to the accident." Upon the first appeal we said: "If the act of the conductor was the proximate cause of the injury, then it made no difference with respect to the freedom from liability of the defendant, as a matter of law, whether the negligence of the conductor was or was not coupled with the defendant's negligence. It is, of course, well settled that, if the injury was caused both by the negligence of the fellow-servant and the negligence of the master, then the master is liable. His negligence is then a contributory or co-operative cause, for which he is liable. But when the proximate cause of the injury is the negligence of a competent fellow-servant no recovery can be had, even though the place or appliances are defective, and the master is negligent in that respect; and whether such negligence of the fellow-servant was the proximate cause, or whether the defendant's negligence was a contributory cause, is ordinarily a question for the jury." The trial court, in his oral charge, used the term "proximate cause,' as applied to the negligence of the conductor, as synonymous with "sole cause." It becomes important to determine whether this language of the charge, implying that, unless the negligence of the conductor was the "sole cause" of the injury, the defendant was liable, is inconsistent with the declaration of law laid down by us. It is apparent that in that part of our former opinion which we have quoted we used the term "proximate cause" as implying the opposite of concurring or contributory cause. This use of the term "proximate cause" in the opinion was proper enough, and was not misleading when construed in the light of the context. It was not, however, in its application to the subject-matter of the charge to the jury, the only term, or, indeed, the best term, to convey the meaning of the court. Strictly speaking, where an accident is caused by reason of concurring acts of negligence on the part of the defendant and another, the negligence of neither can be said to be the "proximate cause," nor is the term "proximate cause" properly used in designating the cause of the accident. The term "proximate cause," in the

sense in which it is ordinarily used, means the efficient cause, which in a natural and continuous sequence, unbroken by any new and independent cause, produced the event, and without which that event would not have occurred. If the event cannot be said to be the natural and continuous sequence of the act of negligence, then such negligence becomes remote, and not proximate. Insurance Co. v. Boon, 95 U. S. 130, 24 L. Ed. 395; Milwaukee etc. Ry. Co. v. Kellogg, 94 U. S. 470, 24 L. Ed. 256. Where an accident is the natural and continuous sequence of concurring acts of negligence committed by two or more persons, such concurring acts of negligence become the proximate cause of the accident. Kraut v. Frankford, 160 Pa. 327, 28 Atl. 783. It is only when the negligence of either of two persons, shown to have been guilty of negligent acts, was a sufficient cause in itself, in the sense that the event would naturally have resulted therefrom independent of the negligence of the other, that the negligence of the former can be said to be the proximate cause. In such event the proximate cause becomes the sole cause.

In the case at bar it was the duty of the railroad company to have exercised reasonable care and caution to construct and maintain its spur at the place where the accident occurred so as to guard against such accidents as might reasonably have been foreseen as liable to happen. If it failed in its duty in this respect, it was guilty of negligence, and, if this negligence contributed to the accident in the sense that otherwise it would not have occurred, then its negligence, coupled with the negligence of the conductor in operating the train, became the proximate cause. On the other hand, if the conductor was guilty of negligence in operating the train, and this negligence, coupled with the negligence of the railroad company in the matter of the construction and maintenance of its spur, was the cause of the injury, such negligence on the part of the conductor was a concurring or co-operative cause, but not the sole cause. If the negligence of the conductor was such as would have resulted in the accident even had the railroad company exercised due care and diligence, then the negligence of the conductor would have been not only the "proximate," but the "sole," cause of the injury, and the railroad company would not be liable. The issue raised by the pleadings and submitted was whether the accident was caused

in whole or in part by the negligence of the company. The question whether the company was liable would be answered in the negative were the jury to say that the conductor's negligence was the sole cause of the accident, for, if the sole cause, then no negligence on the part of the company could have contributed to it. The court did, therefore, properly charge the jury that in determining the question whether the company was liable for the injury they were to find whether negligence on the part of the company contributed to the accident, or whether it was brought about solely by the negligence of the conductor. We think the instructions complained of are consistent with the holdings of the court upon the former appeal, and we think they, considered as a whole, could not have misled the jury to the prejudice of the defendant. The instruction requested by the defendant and refused by the court, and which was made the subject of the eighth assignment of error by appellant, was clearly not the law, for the reason that it contained an improper definition of "proximate cause,' as we have herein defined the term, and for the additional reason that it did not give effect to our former declaration of law relating to the effect of concurring or co-operative acts of negligence.

None of the other assignments of error relating to instructions given and others refused present reversible error.

With regard to the last assignment of error, which relates to the admission of the testimony of certain "expert" witnesses and the objection of the defendant that these were not shown to be competent to give their opinion as to the safety of the place where the deceased was at work, it is sufficient to say the question of their competency was a matter that rested in the sound discretion of the trial court, and we do not find that this discretion was abused. Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487.

The judgment is affirmed.

DOAN, J., and DAVIS, J., concur.

NOTE. As to the relation of the proximate cause doctrine to the rule of liability of a master for injuries to his servants caused by combined negligence of himself and a fellow-servant, see note to Lutz v. Atlantic etc. R. R. Co., (N. M.) 16 L. R. A. 819.

IX Ariz.-15

[Civil No. 864. Filed March 30, 1905.]

[80 Pac. 333.]

BEAUCHAMP H. SMITH, Defendant and Plaintiff in Error, v. WILLIAM H. STILWELL, Plaintiff and Defendant in Error.

1. APPEAL AND ERROR-ABSTRACTS-BRIEFS-FAILURE TO FILE-DIS MISSAL.-Failure of the plaintiff in error to file abstracts and briefs as required by the rules is ground for dismissal of a writ of error. 2. SAME PARTIES-PERSONAL REPRESENTATIVES.-Failure to make the personal representatives of the defendant (who is deceased) in the judgment sought to be reviewed parties to the suit is ground for the dismissal of the writ.

ERROR to the District Court of the First Judicial District in and for the County of Pima. George R. Davis, Judge. Dismissed.

The facts are stated in the opinion.

J. F. Conroy, for Plaintiff in Error.

William H. Stilwell, In pro. persona.

SLOAN, J.-The motion to dismiss the writ of error in this case upon the ground of the failure of the plaintiff in error to file abstracts and briefs as required by the rules of this court, and upon the further ground of the failure to make the personal representatives of the defendant in the judgment sought to be reviewed, who is now deceased, parties to the writ, will be granted, and the writ of error is dismissed.

KENT, C. J., and DOAN, J., concur.