Domitz v. Springfield Bottlers

• Decision Date: 11 July 1949
• Docket Number: 41328
• Parties: Frances M. Domitz, Appellant, v. The Springfield Bottlers, Inc., Respondent
• Court: Missouri Supreme Court

221 S.W.2d 831

359 Mo. 412

Frances M. Domitz, Appellant, v. The Springfield Bottlers, Inc., Respondent

No. 41328

Supreme Court of Missouri

July 11, 1949

Appeal from Jasper Circuit Court; Hon. Woodson Oldham Judge.

Reversed and remanded.

SYLLABUS

It was error to dismiss plaintiff's petition which alleged that the parking of defendant's trailer vans near a street intersection so obstructed the view of motorists that an automobile which had swerved to avoid a collision struck plaintiff as she was crossing the street.

Burden & Shortridge for appellant.

(1) It is a question of fact for the jury as to whether or not the defendant's parking of its truck and permitting same to occupy the street in violation of the ordinance requiring that no vehicles shall so occupy any street as to unnecessarily interfere with or interrupt the free passage of other vehicles, was actionable negligence, proximately causing or contributing to cause the plaintiff's injuries, and the trial court erred in holding that as a matter of law plaintiff's petition did not state a claim upon which relief could be granted. McCloskey v. Renne, 225 Mo.App. 810, 37 S.W.2d 950; Jackson v. City of Malden, 72 S.W.2d 850; Kuba v. Nagel, 124 S.W.2d 597; Milbury v. Turner Center System, 174 N.E. 471, 73 A.L.R. 1070; Whelan v. Bigelow, 33 Cal.App. (2d) 717, 92 P.2d 952; Rubin v. Rainbo Baking Co., 44 N.E.2d 483; Winsky v. DeMandel, 204 Cal. 107, 266 P. 534; Scott v. Simms, 51 S.W.2d 250; Orthwein v. St. Louis, 265 Mo. 556, 178 S.W. 87. (2) If the defendant's negligence proximately caused or contributed to cause plaintiff's injuries, the defendant is liable and it is no defense that there were other concurring causes. Ridenhour v. Oklahoma Contracting Co., 45 S.W.2d 108; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; Hillis v. Home Owners Loan Corp., 348 Mo. 601, 154 S.W.2d 761.

Seiler, Blanchard & Van Fleet for respondent.

(1) Plaintiff's petition fails to state a claim against this defendant upon which relief can be granted for the reason that on the face of plaintiff's petition it appears that defendant's alleged negligence was not the proximate cause of plaintiff's injury. Smith v. Mabrey, 348 Mo. 644, 154 S.W.2d 770; Storey v. New York, 29 A.D. 316, 51 N.Y.S. 580; Walker et ux. v. Illinois Tel. Co., 315 Ill.App. 553, 43 N.E.2d 412; Baker v. Cities Service Oil Co., 321 Ill.App. 142, 52 N.E.2d 284; Vassia v. Highland Dairy Farms, 232 Mo.App. 886, 104 S.W.2d 686; McLaughlin v. Alton Railroad Co., 278 Ill.App. 551; Beach v. Patton, 208 N.C. 134, 179 S.E. 446. (2) The proximate cause of an injury or event, is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred. Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W.2d 924. (3) The test of whether there is a causal connection between the alleged negligence and the injury is that the facts show that absent the negligent act, the injury would not have occurred. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824. (4) The cases relied on by plaintiff in support of her position are distinguishable from the instant case both on the factual situation, and in the particular ordinance involved. Kelly v. Hathaway Bakeries, 44 N.E.2d 654; Falk v. Finkelman, 168 N.E. 89.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Appellant, Frances M. Domitz, filed this suit to recover $ 15,000 as damages for personal injuries which she sustained when she was struck by a car driven by Jack Flynn. The defendant, The Springfield Bottlers, Inc., filed a motion to dismiss plaintiff's petition on the ground that no cause of action was stated entitling plaintiff to a judgment against its company. The trial court sustained the motion and plaintiff appealed.

We shall state the substance of the petition. Three parties were named as defendants, the respondent company, W. D. Mink, and Jack Flynn. The latter two defendants are no longer parties to the suit. The petition alleged that on January 8, 1948, the respondent company negligently and carelessly and in violation of Sec. 1399 of an ordinance of Joplin, Missouri, parked two large van trailers near the intersection of First Street and Wall Street in Joplin "parking same parallel with the south curb of said First Street close to the west curb line of said Wall Street in such manner as unnecessarily interfered with and interrupted the free passage of other vehicles and traffic on said streets by obstructing said traffic and obscuring other traffic and vehicles in and approaching said intersection from the views of drivers of automobiles approaching and entering said intersection from the west or from the south". The petition then alleged that Flynn drove his car east on First Street at a high and negligent rate of speed toward the intersection and Mink in like manner drove his car north on Wall Street toward the intersection; that the vans as parked by the defendant company obstructed the views of the drivers so that neither observed the other; it was alleged that as the cars were driven into the intersection about the same time, there was danger of a collision and to avoid a collision, each driver swerved his car; that Flynn swerved his car to the left or north and in doing so struck plaintiff as she was stepping up onto the sidewalk at the northeast corner of the intersection.

The section of the ordinance alleged to have been violated by the defendant company in parking the vans in the manner alleged reads as follows:

"Sec. 1399. Not to Obstruct Other Traffic. No vehicle shall so occupy any street as to unnecessarily interfere with or interrupt the free passage of other vehicles or hold up traffic."

It is respondent's contention that, first, the facts alleged in the petition disclose that respondent did not violate the provision of the ordinance; and, second, that the facts disclose the parking of the vans in the manner stated was not the proximate or contributing cause of plaintiff's injuries. It may be argued with some reason that the parking of the vans was a violation of the ordinance because they obstructed the views of drivers of automobiles approaching the intersection and thereby interfered with traffic. We must assume that the parking of the vans at the intersection was not a matter of necessity. However, we need not for the purposes of this case hold that the parking of the vans was a violation of the ordinance. If the parking of the vans in the manner described could be said to constitute negligence then it is immaterial whether the parking was a violation of an ordinance. If we take as true the allegations of the petition, and this we must do, then the parking of the vans at the point alleged created an unnecessary hazard. It is common knowledge that "blind" intersections are points of danger for the traveling public. In this case a jury could draw the inference from the facts alleged in the petition that the defendant company was negligent in parking the vans. Parking of trucks near intersections so as to obstruct the view of drivers of cars has frequently been held to constitute actionable negligence. See Milbury v. Turner Center System, (Mass.) 73 A.L.R. 1070, 174 N.E. 471; Kuba v. Nagel, (Mo. App.) 124 S.W.2d 597. Much has been said and written as to the meaning of proximate cause. Sec. 50 C.J. 836. This court in Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036, l.c. 1038 (3), held the phrase "directly contributed to" was equivalent to proximate cause. The court there said:

"The phrase 'directly contributed to', as used in the instruction, cannot be reasonably construed as other than synonymous with proximate cause, by which we mean such a cause as operated to produce a particular consequence without the intervention of an independent cause, in the absence of which the injuries would not have been inflicted. Holwerson v. Railroad, 157 Mo. 231, 57 S.W. 770, 50 L.R.A. 850; Glenn v. Railroad, 167 Mo.App. loc. cit. 116, 150 S.W. 1092."

The question is then, were the actions of Flynn and Mink in driving their cars into the intersection as alleged in the petition such independent acts or causes as to render the negligence of the defendant company remote? In the case of Kuba v. Nagel, supra, the owner of a parked truck was held liable in damages when a child was struck by a car as the child walked from behind the truck into the path of the car. Liability was based on the theory that the parking of the truck obstructed the view of the driver of the car. Likewise in the Milbury case, supra, the truck was parked so as to cut off the view of the intersecting streets. This circumstance was held to be a factor in determining liability. So, in this case it can be argued with considerable reason that if the vans had not obstructed the views of Flynn and Mink, the plaintiff would not have been injured. A jury would be justified in finding that the parking of the vans in the manner described...