Daneschocky v. Sieben

• Decision Date: 05 March 1917
• Docket Number: No. 12330.,12330.
• Citation: 195 Mo. App. 470,193 S.W. 966
• Parties: DANESCHOCKY v. SIEBEN et al.
• Court: Missouri Court of Appeals

193 S.W. 966

195 Mo. App. 470

DANESCHOCKY v. SIEBEN et al.

No. 12330.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Rehearing Denied April 2, 1917.

Appeal from Circuit Court, Jackson County.

Action by Robert Daneschocky against Henry Sieben and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Park & Brown, James M. Johnson, and Phineas Rosenberg, all of Kansas City, for appellant. J. A. Harzfeld, Charles M. Blackmar, and A. F. Smith, all of Kansas City, for respondent Kansas City. Hogsett & Boyle, of Kansas City, for respondents Altman. Charles M. Bush, of Kansas City, for respondent Carroll.

ELLISON, P. J.

From statement of counsel in argument, we learn that plaintiff and several other young persons, with whom he was in company, were returning home at night from a neighborhood entertainment, when he was run over by an automobile and injured on a street in Kansas City. He, and the others, were interrupted in their walk along the sidewalk by building material piled over the sidewalk space extending beyond the curb out into the street, and were, in consequence, compelled to walk out in the street around the material, and while doing so an automobile approached from the rear at terrific speed, ran over him and the others, killing some and injuring others; plaintiff being in the latter number. On the adjoining lot owned by two of defendants, a building was being erected by one of the defendants as contractor. These and the city, together with the owner and the driver of the automobile, were joined as defendants. The case was dismissed as to the two latter. The remaining defendants filed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff stood upon his petition, whereupon judgment was rendered in favor of defendants, and he appealed.

Turning to the petition, we find it to be alleged therein: That the owners of the lot and the contractor for the building deposited in the sidewalk space and roadway an unreasonable and excessive quantity of building material, which obstructed the passage of pedestrians along the sidewalk and occupied a large portion of the roadway almost to the middle of the street, which compelled plaintiff to walk out near the center of the street to avoid the obstruction. That while he was thus lawfully upon the roadway, while in the exercise of ordinary care, he was run over by an automobile owned by one, and driven by another, of defendants, greatly injuring him. It is then alleged that the driver of the automobile was negligent, in that he drove the car at the high rate of speed of 30 miles per hour, which was also in violation of a city ordinance regulating speed. It is then alleged that by the owners, and the contractor, so negligently placing and depositing the unreasonable and excessive quantity of building material in the street as above stated, they interfered with and prevented the safe passage of the public along the sidewalk, and compelled plaintiff to go around, into and along the roadway of the street, when they well knew of the passing of automobiles along the street at high and dangerous rates of speed, and that they should have foreseen injury to pedestrians. It is also alleged that these defendants violated a city ordinance in so obstructing the sidewalk that it could not be used. It is then alleged that the defendant city knew, or by ordinary care should have known, of such obstruction in time to have removed the same and prevented plaintiff's injury. It is then finally charged that the negligence and the unlawful conduct of the contractor, owner, and the city concurred with the negligence of the owner and driver of the automobile in causing the injuries to plaintiff and was the direct and proximate cause thereof. Plaintiff's injuries are properly alleged, as well as the statutory notice to the city of his claim.

In order to sustain an action for negligence, it is necessary that such negligence should be the proximate cause of the injury, and the controversy here is whether the allegations as above summarized show that the negligence of the defendants was the proximate cause of the injury to plaintiff. The immediate or proximate cause of an injury was doubtless first fixed upon as the only actionable cause, from apparent necessity and practicability. Since a cause for any given action, or happening, can be traced back indefinitely, it became necessary to arbitrarily limit the unlimitable, so to speak, by stopping at the proximate cause. For, it was said, to run further back would be endless confusion, with results frequently utterly impracticable. Lawyers from early times, induced by the ordinary meaning of words, and seeming necessity, have been led into the thought that since the word "proximate" means immediate, or next to, the only actionable cause is the cause which actually did the injury; and that any prior cause, no matter how closely related, was a removed cause, and therefore not proximate, and therefore not actionable. There is no doubt that many decisions have been rendered and many definitions stated on that idea. This may be seen by the following taken from Wharton's Law of Negligence, § 134:

"Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter as to which I am not contractually bound. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. I may be liable to him for my negligence in getting him into difficulty, but I am not liable to others for the negligence which he alone was the cause of making operative."

The reasoning in Andrews v. Kinsel, 114 Ga. 390, 40 S. E. 300, 88 Am. St. Rep. 25, and Setter v. City of Maysville, 114 Ky. 60, 69 S. W. 1074, is along the line of these definitions, and therefore, while not saying those cases were not correctly decided we would prefer not to rely on the mode of arriving at such decisions. Later cases in both states, as we shall presently see, announce the law in more satisfactory language.

It is stated in 1 Shearman & Redfield on Negligence (4th Ed.) § 26, note 3, that in order to hold the first wrongdoer liable his act must be such as will "inevitably" cause the injury. But the error of this was, perhaps, seen, and the note was dropped from subsequent editions. When the rule is stated in its full breadth, viz. that a separate intervening cause will break the line of causation leading out from the first cause and, in law, absolve the first cause from all responsibility, it is the statement of a mere arbitrary rule, which in practical application would lead to results opposed to sound reason. The rule should always be accompanied by the qualification that:

"If the intervening act is such as might reasonably have been foreseen or anticipated as the natural or probable result of the original negligence, the original negligence will, notwithstanding such intervening act, be regarded as the proximate cause of the injury." Nickey v. Steuder, 164 Ind. 189, 192, 73 N. E. 117, 118.

We think that where the character of the first wrong is such that an injury will naturally, or probably, result, though it is a result following another cause which has intervened, it is a result that should reasonably have been foreseen or anticipated by the first wrongdoer and he should be held liable. An intervening cause should not be held to excuse the first cause unless such intervening cause is one so unusual and so improbable as not to be reasonably foreseen or considered by an ordinarily prudent man. Otherwise, one...