McCloskey v. Renne.

• Decision Date: 05 January 1931
• Docket Number: No. 16813.,16813.
• Citation: 37 S.W.2d 950
• Parties: MARGARET McCLOSKEY, RESPONDENT, v. GRANT RENNE ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

37 S.W.2d 950

MARGARET McCLOSKEY, RESPONDENT, v. GRANT RENNE ET AL., APPELLANTS.

No. 16813.

Kansas City Court of Appeals. Missouri.

January 5, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Clarence A. Burney, Judge.

REVERSED AND REMANDED.

John C. Nipp, Charles N. Sadler and E.E. Thompson, for respondent.

Mosman, Rogers & Buzard for appellants.

BLAND, J.

This is an action for wrongful death. At the conclusion of plaintiff's testimony the court gave a peremptory instruction on behalf of the defendant, Elizabeth Allen and, thereafter, the cause proceeded against the remaining defendants, Grant Renne and Harry Renne (hereinafter called the defendants). At the conclusion of all of the testimony there was a verdict and judgment rendered in favor of the plaintiff in the sum of $5,000. Defendants have appealed.

The evidence shows that plaintiff is the sole surviving parent of James McCloskey, for whose death she sues; that deceased was sixteen years of age lacking three days on the day of his death; that on the morning of that day deceased, together with other young people, had attended a wedding breakfast; that after this affair Elizabeth Bickett (now Elizabeth Allen) borrowed an automobile from a friend and invited another girl, Alleta Todd, and deceased to accompany her to her home to obtain some signs to put upon "the wedding car;" that they accepted and all got in the automobile; that Elizabeth Bickett was at the wheel, deceased in the front seat to her right and the other girl in the back seat.

Eighteenth street and Montgall avenue are two public thoroughfares in Kansas City which intersect, the former extending east and west and the latter north and south. After starting to her home Elizabeth Bickett drove the automobile, with her companions, north on Benton boulevard and thence in a westerly direction on Eighteenth street. When she approached the intersection of Montgall avenue she turned to drive south upon that street. At the intersection of these two streets there was a jog so that the west line of Montgall avenue extending north of Eighteenth street was a little west of the west line of the avenue extending south of said street.

When Miss Bickett was on the north side of Eighteenth street north of the double car track thereon and "a little" east of the center of the intersection of the two streets she gave a signal by horn and hand and turned in a circle to the left to enter Montgall avenue. When she started to make the turn a man, going west, stepped off of the curbing on the southeast corner in front of the car. He stepped backward and then started forward again. Miss Bickett turned or swerved the car to the right, or in a southwesterly direction, in an effort to avoid striking the man, meanwhile sounding her horn, and in so doing the automobile collided with the ends of large timbers extending from the rear end of a truck which had been parked and was standing upon the west side of Montgall avenue, immediately south of Eighteenth street. The truck was loaded with timbers of various dimensions and among them were two long pieces described as being 8×16 inches and twenty-four feet in length. They extended beyond the rear end of the truck, according to plaintiff's evidence, a distance of from five to eight feet, and defendants admit that they extended a distance of seven feet. When the collision occurred these timbers entered the automobile over the hood of the car and through the windshield, one of the timbers extending into the car between the occupants of the front seat and over the rear seat. There is an inference to be drawn from the testimony that the other timber also entered the car, struck and injured deceased, who died shortly thereafter.

The evidence shows that the automobile was running at the rate of about ten to fifteen miles per hour. It stopped with about half of its length north of the sidewalk on the south side of Eighteenth street where the sidewalk extended east across said street. One witness for plaintiff testified that the automobile after the collision stood twenty, twenty-two or twenty-three feet from the west curb of Montgall avenue; that the automobile was on the east side of the street with its back end almost to the curb on the other side. Montgall avenue was thirty feet wide. The entire width of the truck was shown by defendants to be seven feet and six inches. It was twenty-one feet in length and its bed seventeen feet in length. The collision occurred about 11:00 o'clock A.M. The day was bright and the streets dry. The truck had been standing in its position for an hour or more before the collision. Defendant, Grant Renne, owned the truck and defendant, Harry Renne, who was his employee, placed the truck and left it standing in the street, under the direction of the owner, while preliminary preparations were being made to use the timbers in moving a house which stood near by.

There was evidence tending to show that there was no warning sign, such as a red flag, attached to the end of the timbers, but the evidence disclosed that Miss Bickett, the driver of the automobile, saw the truck and the timbers when she started to turn into Montgall avenue and the question of lack of warning as required by the ordinance was not submitted to the jury, but was withdrawn from its consideration.

The evidence shows that Miss Bickett was an inexperienced driver; that she had never driven an automobile save upon two former occasions; that deceased, who was her sweetheart, had been teaching her how to drive. Miss Bickett, whose name was Allen at the time of the trial by reason of her marriage after the collision in question, testified that deceased "had been showing me whenever we would drive," showing her how to drive; that he had helped her "to guide" and had taken the wheel before when she was driving.

Plaintiff's witness, Alleta Etherton, testified that when Miss Bickett turned into Montgall avenue "there was a man starting out from the street;" that Miss Bickett attempted to go around him but he dodged back and forth a time or two; that Miss Bickett was sounding her horn and proceeding forward during this time and deceased "took hold of the wheel to help her ... and the car turned over in the direction of the truck." The witness was asked how the car was turned and she answered, "Well, Mr. McCloskey was helping Miss Bickett drive." Mrs. Allen testified that deceased "grabbed" the wheel and the car crashed into the timbers. There was other testimony tending to show that deceased at no time touched the steering wheel.

The petition, among other things, pleads a violation on the part of defendants, Grant and Harry Renne, of the following ordinance of Kansas City:

"On all streets and boulevards vehicles shall when stopped stand as nearly parallel with the curb and immediately adjacent and as near the curb as is practicable and not nearer than four feet to either end of any other standing vehicle."

Defendants contend that their instruction in the nature of a demurrer to the evidence should have been given. In this connection they insist: That the alleged violation of the ordinance requiring the truck to be parked parallel with the curb was not the proximate cause of the collision; that the position of the truck at the curb created a condition but did not cause the accident; that an act of negligence creates no liability for an injury not shown to have been caused thereby; that there is no causal connection established between the act of these defendants and the injury occasioned but the evidence shows that said injury arose from other, and independent causes for which defendants are not responsible. Defendants contend that there were two intervening and independent acts superseding their act of negligence. (1) The act of the "man in stepping out in front of the automobile and dodging back and forth," (2) "the grabbing of the wheel by the deceased in an effort to avoid a collision with the man."

The question of proximate cause is usually one for the jury but often it becomes a matter of law for the court. In Mummaw v. Telegraph & Telephone Co., 208 S.W. 476, 477, it is stated from 1 Sherman & Redfield on the Law of Negligence (6 Ed.), par. 39, p. 76:

"It is universally agreed that, if the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including the `act of God' or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff's damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury."

See, also, the cases cited in the Mummaw case; also Hogan v. Fleming, 317 Mo. 524; Hogan v. Fleming, 218 Mo. App. 172; Eagan v. Palmer, 293 S.W. 460; Willi v. United Rys. Co., 205 Mo. App. 272; Shafir v. Sieben, 233 S.W. 419, 423; Strother v. Sieben, 282 S.W. 502. In Mummaw v. Telegraph & Telephone Co., supra, this court also stated, quoting from Benton v. St. Louis, 248 Mo. 98, 110:

"In cases of negligence, liability does not hinge on whether, by the exercise of reasonable prudence, the very injury complained of ought to have been foreseen. The party charged may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of...