Jenkins v. Springfield Traction Co.

• Decision Date: 08 September 1936
• Citation: 96 S.W.2d 620,230 Mo.App. 1235
• Parties: MAGGIE JENKINS, RESPONDENT, v. SPRINGFIELD TRACTION COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

96 S.W.2d 620

230 Mo.App. 1235

MAGGIE JENKINS, RESPONDENT, v. SPRINGFIELD TRACTION COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

September 8, 1936

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

AFFIRMED.

Judgment affirmed.

S. C Bates and Charles L. Henson for appellant.

Where two conditions exist, either of which might have caused the injury, for one of which the defendant is liable but not the other, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result rather than the other. The jury will not be permitted to act upon conjecture. Conn v. Lounge Co. (Mo.), 222 Mo. 488, 121 S.W. 1; Powell v. Walker, 195 Mo.App. 150, 185 S.W. 532. The rule is elemental that the burden remains with the plaintiff to the end of the case to establish by proof a direct connection between the negligence and the injury. And where not susceptible of direct proof then its existence must follow as a reasonable conclusion. And where in order to find the ultimate fact they must piece out the facts with conjecture or supposition, the plaintiff must be held to have failed in his proof. Coble v. St. L. & San Francisco Ry. Co. (Mo.), 38 S.W.2d 1031; Madden v. Red Line Service (St. L. Ct. of App.), 76 S.W.2d 435. So, plaintiff, throughout, carried the burden of proving not only the fact of negligence charged but also a direct connection between such negligence and the injury. Coble case, supra; Madden case, supra. Proximate cause is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Cable v. Johnson, 63 S.W.2d 433; DeMoss v. K. C. Ry. Co. (Mo.), 246 S.W. 566.

Orville F. Kerr and George H. Skidmore for respondent.

It is the duty of a street car motorman in approaching an intersection to keep a vigilant outlook for persons or vehicles approaching the intersection and to give warning to such persons in crossing the intersection, to avoid injuring others. Malott v. Harvey, 204 S.W. 940, 199 Mo.App 615; Draper v. Kansas City Rys., 203 S.W. 646, 199 Mo.App. 485. It is sufficient to constitute proximate cause that the negligence for which recovery is sought was the efficient cause which set in motion the chain of circumstances leading up to the injury; and the primary cause will be the proximate cause where it is so linked and bound to the succeeding events that all create or become a continuous whole, the first so operating on the others as to make the primary cause productive of the injury. Moreover, the question of proximate cause in connection with the defense of independent intervening causes, is ordinarily a question for the jury. Creger v. City of St. Charles, 11 S.W.2d 753; Hogan v. Fleming, 357 Mo. 524; Lovett v. Ry. Co., 316 Mo. 1246. The liability of a person charged with negligence does not depend on the question whether with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of, but he may be held liable for negligence, which, after the injury is complete, appears to have been a natural and probable cause of his act or omission. Deneschocky v. Seiben, 193 S.W. 966; Dugdale v. St. Joseph Light & Power Co., 189 S.W. 830; Wright v. Kansas City Terminal Ry. Co., 193 S.W. 963. The law is well settled in Missouri that a defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another, or with the act of God, or with an inanimate cause, and it became a part of the direct and proximate cause although not the sole cause. This is commonly called the doctrine of concurrent causes. Harrison v. Kansas City L. & P. Co., 195 Mo. 606, 93 S.W. 951; Newcomb v. R. R., 160 Mo. l. c. 422; Brake v. St. Louis, 161 Mo. l. c. 437; Buckner v. Horse & Mule Co., 221 Mo. 700, 120 S.W. 766.

SMITH, J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--This cause was instituted and tried in the Circuit Court of Greene County, which resulted in a verdict and judgment for five hundred dollars in favor of plaintiff.

The theory of the case is clearly set out by the pleadings. Even though it is lengthy, we set out the petition in full, caption and signature omitted, as follows:

"Comes now the plaintiff and for cause of action states that she is a resident of Greene County, Missouri, and that defendant is and was at all times hereinafter mentioned a corporation organized and existing under the laws of the State of Missouri, with its principal offices and place of business located in the City of Springfield, and that the defendant among other things is engaged in the business of operating street cars and motor busses for hire in said city.

"Plaintiff further states that Monroe Street is a public thorough-fare in the City of Springfield running in an east and west direction, and that upon said street defendant maintains a single line of street car tracking, upon and over which it operates street cars in the furtherance of its business; that Kimbrough Avenue is a public thoroughfare in said city running in a north and south direction, that Kimbrough Avenue and Monroe Streets intersect in a populous residence section of said city; that both Kimbrough Avenue and Monroe Street are paved streets of approximately thirty feet or more in width and that the intersection of said streets is open and presents a clear view for a considerable distance in either direction to a person approaching said intersection.

"Plaintiff further states that on or about the 16th day of October, 1934, she attended a funeral at the Klingner Undertaking Company located in the north part of said City of Springfield; that after said funeral was held a procession of automobiles was formed and said procession traveled from said undertaking company in a southerly direction along Kimbrough Avenue toward the Maple Park Cemetery, located in the south part of the City of Springfield; that the total number of automobiles forming said funeral procession was at least ten or more in number; that plaintiff entered an automobile being driven by and under the control of Mrs. Edna Cline, as a guest of and at the invitation of the said Mrs. Edna Cline for the purpose of attending the funeral services to be held at said cemetery; that the said automobile became a part of said funeral procession and proceeded along at some distance behind the hearse, the car containing the pallbearers, and other cars containing friends and relatives of the deceased.

"Plaintiff further states that the front automobiles forming said procession were marked with small flags attached to the fenders denoting the character of the procession, and that a uniformed policeman of the City of Springfield riding a motorcycle, rode at the head of said procession for the purpose of acting as a convoy and in order to give warning to persons approaching said procession at right angles of its character as a funeral procession.

"Plaintiff further states that as said funeral procession approached the intersection of Kimbrough Avenue and Monroe Streets, the policeman heading the procession drove his motorcycle into said intersection; that at that time a street car of defendant company, operated by a motorman of the defendant company in pursuance of his employment as the employee, agent and servant of defendant company approached said intersection traveling in a westerly direction along Monroe Street; that the motorcycle policeman sounded a signal upon proceeding into said intersection, but that defendant's motorman carelessly, negligently and without warning drove the street car of defendant into said intersection and upon and against the motorcycle, throwing said motorcycle policeman to the pavement and dragging the motorcycle along the line of defendant's tracks.

"Plaintiff further states that as a direct result of the carelessness and negligence of defendant's motorman as aforesaid, the cars forming said funeral procession came to a sudden and abrupt stop, in order to avoid striking said policeman or street car, and that the automobiles forming said procession began to approach closer together, and that the automobile in which plaintiff was riding ran into and against the automobile immediately in front of it, and was struck from the rear by the automobile immediately behind it, and that by the force and impact of said collision or collisions, directly resulting from the negligence of the defendant's motorman as aforesaid, plaintiff was jostled, shaken and forced against the side and door of the automobile in which she was riding so that the door of said automobile opened, and plaintiff was thrown to the pavement, causing her physical injuries as hereinafter set out.

"Plaintiff further states that her injuries complained of are the direct result of the negligence and carelessness of the operation of the defendant's street car by its employee, agent and servant, and that the employee, agent and servant was negligent and careless in the following particulars.

"1. That defendant's motorman failed to heed or give attention to the signals, warnings and orders of the police officer to stop said street car, and drove said street car into said intersection and upon and against the motorcycle negligently and with a careless disregard for the safety of persons approaching said intersection.

"2. That defendant's motorman failed to keep a vigilant lookout as he drove defendant's street car into said street intersection, and said street intersection is burdened with heavy traffic and is one which requires defendant's motorman to use great care in crossing.

"3. That defendant's motorman...