Dickerson v. St. Louis Public Service Co.

• Decision Date: 09 January 1956
• Docket Number: No. 44705,44705
• Citation: 286 S.W.2d 820,365 Mo. 738
• Parties: Ellen DICKERSON, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant.
• Court: Missouri Supreme Court

Page 820

286 S.W.2d 820

365 Mo. 738

Ellen DICKERSON, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Appellant.

No. 44705.

Supreme Court of Missouri, En Banc.

Jan. 9, 1956.

Rehearing Denied Feb. 13, 1956.

Lloyed E. Boas and Robert E. Staed, St. Louis, for appellant.

John T. Murphy, Jr., Morris B. Kessler, St. Louis, for respondent. Joseph Nessenfeld, St. Louis, of counsel.

EAGER, Judge.

This is a suit for damages for personal injuries. The trial resulted in a verdict and judgment for plaintiff in the sum of $7,500. On appeal to the St. Louis Court of Appeals the judgment was reversed outright. That opinion appears at 271 S.W.2d 201. The case was transferred here by order of this court under the provisions of Sec. 10, Art. V of the Missouri Constitution 1945, V.A.M.S.; it is, therefore, here as though upon an original appeal to this court. The City of St. Louis was originally a defendant but a verdict was directed for it, and no appeal was taken by the plaintiff from the judgment entered against the present appellant alone. The basis of the ruling of the Court of Appeals will be shown and discussed hereinafter.

At about 8:00 a. m., on March 29, 1949, Ellen Dickerson was a passenger on one of defendant's buses on her way to work. The bus, going south on Sarah Street, stopped at the Chouteau Avenue intersection, and then turned right or westward into Chouteau where there was a regular bus stop. It was at this stop that plaintiff wished to alight. The bus driver testified that the traffic on Sarah Street prevented him from making a 'wide' turn into Chouteau, but that he stopped with the front of his bus 'up at' the 'Bus Stop' sign. One witness said the bus made a normal turn. It is clear that the bus was stopped with its right side some distance from the north curb of Chouteau. This fact is material, so we note here that: plaintiff said the distance was 'about ten feet'; a witness who helped measure the distance immediately after the crash which ensued said it was 11 1/2 feet; one passenger said about 9 feet, others much less; the driver said 3 feet at the rear and 4 1/2 feet at the front; one witness testified that the left side of the bus was within about one foot of the center of the street. In any event, when the bus stopped and the doors were opened two men were waiting to get off ahead of plaintiff at the rear door; they had alighted, one had just walked to the curb, and plaintiff was still on the top step when the bus was struck violently from behind by a city street flushing truck, at about its center, and knocked several feet, more or less straight west. Plaintiff was thrown into the street by the impact, alighting on the lower part of her back with her right arm apparently under her and her feet toward the bus. She was picked up, taken to the curb, and rested there until police officers and an ambulance came. Her injuries will be described later. The driver testified that people were also getting off at the front door of the bus. There were no cars parked along the north curb of Chouteau for 250 feet from the corner. The distance of the rear of the bus from the corner was variously estimated at from 8 to 60 feet. The time which elapsed between the stopping of the bus and the impact was variously estimated at 'about 2 seconds' or longer by the plaintiff, 15-20 seconds by the bus driver, and 'around 20 seconds' by a passenger.

The driver of the city truck (going west on Chouteau) testified: that it was an old model Mack truck; that he slowed at the Sarah intersection and shifted gears, saw the bus making a right-hand turn, and proceeded on across the intersection; after he crossed he shifted back from third to fourth gear, necessarily looking down momentarily as he did so; at that time the bus appeared to be moving straight westwardly; as he looked up again, and moving at 10-15 miles per hour, he saw the bus stopped about 10-15 feet ahead of him and about 10 feet out from the curb, practically in the line in which he was traveling; that its left wheels were across the south rail of the west-bound street car track; that he immediately put his foot on the brake, but had not succeeded in making a 'full application' of the brakes by the time of the collision, and that he struck the bus about 60 feet west of Sarah Street, at a speed of about 12-15 miles per hour; that the crash was violent and loud; that the truck was not quite as wide as the bus; that he did not swerve the truck nor attempt to use the emergency brake. There was testimony from this witness on cross-examination in the nature of estimates or guesses (without actual tests) that he thought he could stop the truck in 9-10 feet at a speed of 12-15 miles per hour. The truck driver was plaintiff's witness. This driver and his supervisor measured the distance of the bus from the curb after the collision as 11 1/2 feet.

There was evidence that the bus came to a 'normal' stop, except for its position. Some of the other passengers on the bus were shaken up rather violently, and the bus driver testified that several went to the hospital. Plaintiff offered in evidence an ordinance of the City of St. Louis providing that 'no person except in an emergency or to allow another vehicle to cross its path shall stop a vehicle in any street except near the right-hand curb * * *.' The theory upon which a verdict was directed for the city was that it was, at the time, performing a governmental function.

On these facts the Court of Appeals held that the negligence of the driver of the city truck constituted an 'intervening efficient and proximate cause' which broke the chain of events, and rendered any negligence of the bus driver too remote to operate as a proximate cause. We disagree for the reasons stated herein. In this matter questions of proximate cause and efficient, intervening cause are inseparably interwoven. They are not easy of solution, and we repeat the oft-used principle that in this determination each case must stand on its own individual facts; the final result boils down largely to a construction of the evidentiary situation.

Generally, we may say that an efficient, intervening cause is a new and independent force which so interrupts the chain of events as to become the responsible, direct, proximate and immediate cause of the injury. 65 C.J.S., Negligence, Sec. 111, pp. 685-691; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404; but it may not consist merely of an act of concurring or contributing negligence. (id.) Such definitions are often somewhat difficult to apply. Indeed it has been said that an intervening cause is merely proximate cause flowing from a source not connected with the defendant. Shearman & Redfield on Negligence, (Rev.Ed.) Sec. 37, p. 99. The picture becomes clearer when we consider the practical test of proximate cause. A proximate cause is generally considered to be that cause or act (as of negligence) of which the injury was the natural and probable consequence. Shearman & Redfield on Negligence, (Rev.Ed.) Sec. 55, p. 94; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; Snyder v. Jensen, Mo., 281 S.W.2d 802. Thus, from the essential meaning of proximate cause arises the principle that in order for an act to constitute the proximate cause of an injury, some injury, if not the precise one in question, must have been reasonably foreseeable. If some injury is reasonably to be anticipated or is reasonably probable as a result of the defendant's act of negligence, then the added act of a third person, though he also be negligent, does not break the chain of causation and defendant is liable; in such event the act of the third person is mere concurring negligence. See generally: Shearman & Redfield, supra, pp. 101-103; Snyder v. Jensen, Mo., 281 S.W.2d 802; Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74; Cox v. Wrinkle, Mo., 267 S.W.2d 648; Champieux v. Miller, Mo., 255 S.W.2d 794; Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35. In this situation (if defendant was guilty of negligence) we, therefore, arrive at the relatively simple question: could defendant's driver reasonably anticipate that some injury to one or more passengers was probable when he stopped the bus where he did?

We may say here very briefly that on this evidence a clearly submissible case of negligence was made against defendant, both under the ordinance and the common law. Plaintiff was entitled to the most favorable view of the evidence, and one could hardly deny that the stopping of a bus 10 to 11 1/2 feet from the curb for discharging passengers on a busy city street was a thing which some reasonable minds might consider a hazardous thing to do; nor do we think that 10-11 1/2 feet out was 'near the curb' as required by the ordinance; no emergency is claimed. No explanation was made as to why the driver could not have driven on further down Chouteau to pull in to the curb, with no cars parked for 250 feet. The violation of an ordinance is, of course, negligence per se. Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761, and cases cited.

Having thus determined that there was, at least, a submissible issue on defendant's negligence, we must decide whether the driver, at the time of stopping as he did, could have reasonably foreseen or anticipated some probable injury to his passengers from so doing. He was, of course, held to the exercise of the highest degree of care. Many of the cases cited and to be cited herein hold that it is not necessary to show that he should have anticipated the precise injury which occurred. While there is no Missouri case on these precise facts the following cases present somewhat analogous situations in which the liability of the original negligent party was upheld; in other words, where the act of the defendant was held to be a proximate cause, since he might reasonably have anticipated that some injury might ensue. Floyd v. St. Louis Public Service Co., Mo., 280...