Baltimore City Passenger Railway Co. Kemp

Alvey, C. J., delivered the opinion of the Court. There has been a motion made in this case for re-argument, based largely upon authorities that were not brought to the attention of the Court on the former hearing; and hence we depart from the general practice of disposing of such motions without the formal assignment of reasons for the action of the Court thereon. Upon the question, whether the jury should have been allowed to infer, upon the evidence before them, that cancer was the result of the injury received by the plaintiff, the defendant cites and relies upon the case of Jewell vs. Grand Trunk Railway Co., 55 N. H., 84, a case not referred to on the former argument. But the facts of that case are so entirely different from those of the case before us that the analogy between the two cases is but slight.

In the first place, the party whose negligence caused the injury in that case was not, according to the decision of the Court, the servant or employe of the defendant, and therefore the defendant was not liable for his acts. In the second place, there was a considerable length of time intervening between the time of the accident and the death of the party, the latter in the meantime being engaged in hard work and subjected to much exposure, and all the circumstances of the case rendered it exceedingly doubtful whether there could be any connection between the injury received by a blow on the right shoulder, and a cancer that was found to exist, by postmortem examination, in the left lung of the party, a year and a half after the injury received. And the physicians all testified that, in their opinion, neither the last sickness of the party, nor the cancer, was in any way attributable to the injury previously received. The Court, ⁶²¹ moreover, considered and determined the case upon the weight of evidence, as upon motion for a new trial, and not as upon a demurrer to the legal sufficiency of the evidence to be submitted to the jury, as in the case before us.

The other cases cited upon this question have only a remote or indirect bearing, and we do not perceive that they are at all in conflict with the opinion that has been delivered in this.case. Since the opinion in this case was delivered, 50th Michigan has been published, and that volume contains the case of Beauchamp vs. Saginaw Mining Co., at page 163. In that case a boy, while passing on a highway, was injured by being struck on the side of his head, by a stone from a blast fired by the mining company, and having died some five or six months thereafter, an action was brought to recover damages for his death, caused, as it was alleged, by the negligence of the defendant. Among other defences, it was alleged, and evidence was given to show, that death was not caused by the injury, but by specific or typical pneumonia; and the case was sought to be taken from the jury upon the ground that pneumonia and not the injury received from the stone was the direct and proximate cause of the death.

The physician who attended the boy in his sickness testified that he died of pneumonia, though he had been very seriously injured, and was paralysed on one side, and the chances of recovery were against him. The doctor said in his testimony, “ I am unprepared to say what caused pneumonia in this case. In my opinion it was a specific or typical pneumonia; the relation between it and the injured head was not close.” It was contended, however, for the plaintiff, that owing to the broken and shattered condition of the boy’s system, caused by the injury received, and his increased susceptibility to cold, pneumonia was superinduced and developed as a natural result of the injury; and that question was submitted to the jury upon the evidence, and ⁶²² they found for the plaintiff. The case was taken to the Supreme Court of Michigan, and the error assigned was the submission of the question to, and allowing the jury to conclude, as to whether pneumonia did in fact result from and was a consequence of the injury received by the boy.

The Supreme Court affirmed the ruling of the Court below, and held, that “ if the injury received and sickness following concurred in and contributed to the attack of pneumonia, the defendant must be held responsible therefor.” And so in this case : If the injury received by Mrs. Kemp, by the negligence of the defendant, superinduced and contributed to the production or development of cancer, the defendant is responsible therefor; and the cancer is not to be treated as an independent cause of injury or suffering, any more than pneumonia,' resulting from an injury that rendered the system susceptible of and liable to the attack, as a natural consequence of such injury, is to be regarded as an independent cause of death. In both cases, the original injury was the prime cause that opened the way to and set other causes in motion, which-led to the fatal results. And the wrongdoer cannot be allowed to apportion the measure of his responsibility to the initial cause. Whether the direct causal connections exist, is a question, in all cases, for the jury, upon the facts in proof.

There is another ground upon which re-argument of the case is asked, and that is with respect to the nature of the action, and for what nature and extent of injury damages may be allowed to be recovered therein. The defendant insists that while the form of action is as for a tort, yet the real ground of the right to