Davis v. Schroeder

• Decision Date: 18 June 1923
• Docket Number: 5991.
• Citation: 291 F. 47
• Parties: DAVIS, Agent, v. SCHROEDER.
• Court: U.S. Court of Appeals — Eighth Circuit

291 F. 47

DAVIS, Agent, v. SCHROEDER.

No. 5991.

United States Court of Appeals, Eighth Circuit.

June 18, 1923

Homer Hall, of St. Louis, Mo. (N. S. Brown, of St. Louis, Mo., on the brief), for plaintiff in error.

S. T G. Smith, of St. Louis, Mo., for defendant in error.

Before SANBORN, LEWIS, and KENYON, Circuit Judges.

KENYON Circuit Judge.

The parties for convenience will be designated as in the trial court. Near the intersection of Lindell boulevard and Union avenue, in the city of St. Louis, state of Missouri, the tracks of the Wabash Railway Company cross the boulevard. The railway company maintains and operates there the usual crossing gates for the purpose of warning persons approaching the crossing of the imminence of cars and locomotives. On the night of February 10, 1918, between the hours of 1 and 2 o'clock in the morning, plaintiff, with his brother, was in an automobile approaching the crossing from the east on the north side of the boulevard. There was evidence in the case tending to show that one arm of the gates was lowered so that it was an obstruction to travel on the street, and that there was no light thereon to warn those approaching. A party named Jones, passing eastward at a high rate of speed either struck the end of the gate and lost control of his machine, or attempted to avoid the gate, and ran into the automobile in which plaintiff was riding, striking it at a distance east of the gate variously estimated by witnesses as from 300 to 340 feet. Just how the accident occurred is not clearly shown, and much must be left to conjecture. The automobiles were badly damaged. Jones was seriously injured, and plaintiff also suffered injury, for which he asks in this action recovery against the railway company.

The case was originally brought in the circuit court of the city of St. Louis against Edith L. B. Jones, administratrix of the estate of Fred R. L. Jones, deceased, and the Wabash Railway Company, defendants. The petition charged that Jones was guilty of negligence in operating his automobile in violation of law, at such speed as to endanger the life and limb of plaintiff and others, and in violation of an ordinance of the city of St. Louis, which ordinance provided that an automobile should not be propelled at a greater rate of speed than 8 miles per hour in the business portion of the city, or 10 miles per hour in other portions thereof. It is without dispute that such ordinance was in effect at the time of the accident. The case was removed to the United States District Court by the railway company, and later plaintiff dismissed his cause of action as to defendant Edith L. B. Jones, administratrix. December 27, 1918, plaintiff filed an amended petition against the railway company, omitting the allegation of negligence on the part of Jones. Upon the motion later made the Director General of Railroads was substituted as sole defendant in the case. The motion of defendant at the close of the evidence to direct a verdict in its favor was overruled. The jury returned a verdict of $2,500 for plaintiff and judgment was entered by the court for said amount.

A number of questions are raised for review by the assignments of error. We think it unnecessary to consider but one. The crucial and controlling question is: Was the alleged negligence in permitting one arm of defendant's gates at Lindell boulevard to be down, without light or warning thereon, the proximate cause of plaintiff's injury? The answer to this question is decisive of the controversy. There is little use of reviewing the many cases where the question of proximate cause is involved. There are differences in every case, and ofttimes the case turns on a slight difference of facts. The general principles of the law in relation thereto are settled and are not so difficult as is their application to the particular circumstances of each individual case.

This action is founded on the negligence of defendant, as set forth in the petition. The burden was on the plaintiff to show such negligence, and further to show that the same was the proximate cause of the injury to plaintiff. Not all negligence is actionable. It is only so when the injury or the loss is the proximate result thereof. The proximate result must be the natural and probable consequence, which ought to have been foreseen or reasonably anticipated in the light of the attendant circumstances. That is the rule laid down by this and other courts, with some slight variance in the language by which the thought is expressed. We shall content ourselves in a general way with reference to the decisions of this court and the Supreme Court of the United States on this subject. Our work is relieved of present difficulty by the clearly announced doctrines of this court in the past.

In Chicago, St. P., M. & O. Ry. Co. v. Elliott, 55 F. 949, 951, 952, 5 C.C.A. 347, 349 (20 L.R.A. 582), this court states the rule as follows:

'An injury that is the natural and probable consequence of an act of negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and would not have resulted from it, but for the interposition of some new, independent cause, that could not have been anticipated.'

Again in Cole v. German Savings & Loan Soc., 124 F. 113, 115, 59 C.C.A. 593, 595 (63 L.R.A. 416), a case well regarded as a leading one, this court said:

'But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, if 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 injury.'

In Teis v. Smuggler Mining Co., 158 F. 260, 264, 85 C.C.A. 478, 482 (15 L.R.A. (N.S.) 893), Judge Philips reviewed many of the leading cases on the subject of proximate cause and said:

'Whenever this causal connection between the negligent act and the ultimate injury is interrupted by reason of the interposition of some independent force or human agency, acting independently of the first negligent act, but for which the ultimate injury would not have come, the former is the remote and the latter is the proximate cause.'

The rule is well expressed in Crane Co. v. Busdieker, 255 F. 664, 666, 167 C.C.A. 40, 42:

'An injury or death that is the natural and probable consequence of an act of alleged negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated, by a person of ordinary prudence and intelligence, as the probable result of an act of alleged negligence, is not actionable; nor is an injury or death that is not the natural or probable consequence of the act of alleged negligence, and that would not have resulted from it, but for the interposition of some new and independent cause that could not have been anticipated.'

See, also, United States F. & G. Co. v. Des Moines Nat. Bank, 145 F. 273, 74 C.C.A. 553; Armour & Co. v. Harcrow, 217 F. 224, 133 C.C.A. 218; City of Memphis, Tenn., v. Board of Directors (D.C.) 231 F. 217.

One of the leading cases on this subject is Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 475 (24 L.Ed. 256), where that court said:

'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,

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