De Moss v. Kansas City Rys. Co.

• Decision Date: 20 December 1922
• Docket Number: No. 22449.,22449.
• Citation: 296 Mo. 526,246 S.W. 566
• Parties: DE MOSS v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

246 S.W. 566

296 Mo. 526

DE MOSS v. KANSAS CITY RYS. CO.

No. 22449.

Supreme Court of Missouri, in Banc.

December 20, 1922.

Motion for Rehearing Overruled December 30, 1922.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by Nellie De Moss against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Reversed.

Charles N. Sadler, E. E. Ball, and Louis R. Weiss, all of Kansas City, for appellant.

S. L. Trusty, E. H. Gamble, and McCanles, Kennard & Trusty, all of Kansas City, for respondent.

DAVID E. BLAIR, J.

The action is in damages for personal injuries. From a judgment for $15,000 in favor of the plaintiff below, defendant has appealed. By reason of a dissent to an opinion written in division 2 affirming the judgment below, the case came here, where, after argument anew, the divisional opinion was rejected. In the view we take of the case we need consider only one assignment of error discussed in the divisional opinion, to wit: The sufficiency of the evidence to support the verdict for plaintiff.

On May 18, 1918, at about 4 or 5 o'clock p. m., plaintiff and her husband, John H. De Moss, were proceeding eastward upon Fifteenth street it Kansas City, Mo., in an automobile owned and operated by Mr. De Moss, and collided with a street car of defendant at the intersection of Prospect avenue and said Fifteenth street.

Defendant operated its cars over both streets by means of double tracks. Fifteenth street is approximately level at Prospect; while the latter street is downgrade to the north at the intersection. One of defendant's cars moving northward on the east track in. Prospect avenue stopped at the south line of Fifteenth street to receive and discharge passengers. When it moved forward it turned to the left toward the north track in Fifteenth street to proceed westward on that street. Just as the street car was rounding the turn the automobile in which plaintiff was riding crashed into the side of the car near or possibly back of the middle, damaging the automobile and seriously injuring plaintiff.

Plaintiff's evidence tended to show that the downgrade in Prospect avenue caused the street car to move forward more quickly than it would have moved on level ground in making such a turn; that she saw the car standing in Prospect avenue when the automobile was 75 feet away, and that she saw it start forward suddenly when the automobile was about 35 or 40 feet away. Plaintiff immediately exclaimed to her husband, "Oh, papa!" and at the same time he applied the brakes; but the automobile continued to move forward until it struck the street car. The automobile had "no chains on its, wheels, although it was equipped with them. The pavement was wet and slippery from rain. Plaintiff testified that if the automobile had not skidded it would have stopped. The automobile was moving 9 or 10 miles per hour when plaintiff saw the street car start forward and the brakes of the automobile were applied. Plaintiff kept her eye on the street car from the time she first saw it standing at the south line of Fifteenth street until it started forward. She testified that no gong was sounded before it started, and that the motorman was looking back in the direction where the loading of the car was taking place, and did not look west as he started the street car. It was broad daylight, and the inference is clear that if the motorman had looked to the west he would have seen the automobile approaching. There was ample room in Prospect avenue west of the street car for the automobile to turn into that street and pass the car without striking it.

The negligence relied upon by plaintiff was the starting of the street car forward into the street intersection without warning and without the motorman looking west before starting the same, when the automobile was approaching over a wet and slippery street. The allegations of the petition are rather involved, but the foregoing is the substance thereof. Plaintiff also attempted to plead the humanitarian doctrine, but such ground of negligence was abandoned.

There is evidence tending to show that the street car was moved forward quickly into the turn at the street intersection and directly in the path of the on-coming automobile without preliminary warning and without the motorman looking to the west immediately before starting the car. It may be assumed for the purposed of the case that the motorman was negligent in so doing. The plaintiff saw the street car, and must have known it would start forward as soon as it could. There was evidence that the gong is usually sounded before starting forward under such circumstances. The sounding of the gong was not required to advise plaintiff of the presence of the car, for she had already seen it, but only to advise her that it was about to be started. Let it be further assumed that plaintiff was in the exercise of ordinary care in expecting the street car not to be started forward until the gong had been sounded and until the motorman had looked to the west, although' she knew he was looking back as the automobile approached. Nevertheless, it does not follow that plaintiff made a case for the jury. It clearly appears from her own evidence and all the evidence upon the point that an independent, intervening, and efficient cause, over which defendant had no control and which its motorman had no reason to anticipate—the skidding of the automobile—was the proximate cause of the collision without the intervention of which the collision would rot have occurred. The street was wet and slippery. Although the automobile was equipped with chains for its wheels, the same were not in use. When the brakes were applied, the speed of the automobile was not sufficiently checked to avoid a collision. The brakes doubtless took hold and stopped the revolution of the wheels, but the momentum of the automobile carried it forward by reason of the wheels sliding or skidding over the wet pavement. Plaintiff testified, "If it had not skidded, it would have stopped." The inference is therefore conclusive that, under ordinary conditions, the automobile could have, and reasonably should have been expected to be, stopped or turned into Prospect avenue in less than 35 or 40 feet when going at a speed of 9 or 10 miles per hour, and after the street car was seen to start forward and indicate that it would immediately obstruct that part of the street upon which the automobile was proceeding eastward.

If the motorman had looked to the west at the moment he started the street car, he would have seen an automobile approaching at such a distance and at such a speed that it could reasonably be expected to be stopped or turned before reaching the street car. He had no means of knowing that ordinary precautions to put on chains had not been observed, and therefore could not have anticipated that the automobile was liable not to respond to its brakes for that reason. The automobile had no superior right in the street. The motorman had the right to assume that the driver of the car would use ordinary care, and hence, if he had sounded the gong and had looked to the west before starting his car, and had then seen the automobile approaching, he would have been guilty of no negligence, under the circumstances, in starting his car and assuming that the automobile would be seasonably brought to a stop or turned aside.

The general rule is that—

"Although a defendant may be negligent in the performance of some duty owed to the person injured, no liability attaches unless such negligent act was the proximate cause of the injury." 29 Cyc. 488; Stepp v. Railway Co., 85 Mo. loc. cit. 233. "If the injury could not have been reasonably anticipated as the probable result of the act of negligence, such act is either remote or no cause of injury." 29 Cyc. 495; Daneschocky v. Sieble, 195 Mo. App. 470, 193 S. W. 966.

If injury could not reasonably have been anticipated as the result of the negligence, save for the intervention of an independent, efficient cause, the intervention of which could not have been anticipated by the person guilty of the negligence, there can be no recovery.

Division 2 very recently decided a case where these principles of law were applied to a state of facts somewhat comparable with those in the case at bar. Borack v. Mosler Safe Co., 288 Mo. 83, 231 S. W. 623. There the conceded negligence of the driver of a heavy truck in turning his team to the left of the center of intersecting streets, in violation of ordinance, was held not to be the proximate cause of the death of plaintiff's husband, due to a blow from the end of the wagon tongue, which swung violently to one side by reason of the fall against it of one of the horses, resulting from a heavy jolt and the slippery condition of the street.

Our conclusion is that plaintiff failed to make out a case for the jury, and the judgment is therefore reversed.

GRAVES, HIGBEE, and ELDER, JJ., concur.

JAMES T. BLAIR, J., dissents.

WALKER, J., dissents in separate opinion, in which WOODSON, C. J., concurs.

WALKER, J. (dissenting).

I dissent from the reasoning and conclusions of the majority opinion; and I have deemed it proper to set forth a statement of the facts as I read them in the record, and my conclusions of law applicable thereto, that my reasons for holding that this judgment should be affirmed may be clearly understood.

Plaintiff is a married woman, who at the time of the trial was about 38 years of age. In May, 1918, she was en route to her home in Liberty in an automobile, accompanied by her husband and two small children. The husband was at the wheel, and she and the children were on the back seat. The accident in which she received her injuries occurred at the intersection of Fifteenth street and Prospect avenue in Kansas City. A car on defendant's track had stopped about even with the Fifteenth street curb line, and was standing there when the...