State ex rel. City of St. Charles v. Haid

• Citation: 28 S.W.2d 97
• Decision Date: 15 May 1930
• Docket Number: No. 29515.,29515.
• Parties: THE STATE EX REL. CITY OF ST. CHARLES v. GEORGE F. HAID ET AL., Judges of St. Louis Court of Appeals.
• Court: United States State Supreme Court of Missouri

28 S.W.2d 97

THE STATE EX REL. CITY OF ST. CHARLES v. GEORGE F. HAID ET AL., Judges of St. Louis Court of Appeals.

No. 29515.

Supreme Court of Missouri, Court en Banc.

May 15, 1930.

Certiorari to St. Louis Court of Appeals.

WRIT QUASHED.

Wm. F. Achelpohl, T.C. Bruere and Hensley, Allen & Marsalek for relator.

(1) Respondents' opinion in the cause of Cregger v. City of St. Charles, is in conflict with the following, among other, controlling decisions of this court, holding that, in order to recover for the defendant's negligence, the plaintiff must adduce substantial evidence to establish a direct causal connection between the injury and the negligence charged, showing such negligence to be the proximate cause of the injury; and that a verdict in favor of the plaintiff cannot be based upon pure speculation and conjecture: State ex rel. Public Utilities v. Cox, 298 Mo. 427; Hamilton v. Railway Co., 300 S.W. 791; State ex rel. Boeving v. Cox, 310 Mo. 367; State ex rel. Railroad v. Bland, 313 Mo. 246; State ex rel. Macon v. Trimble, 12 S.W. (2d) 727; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; Van Bibber v. Swift & Co., 286 Mo. 317; Kane v. Ry. Co., 251 Mo. 13; Swearingen v. Railway Co., 221 Mo. 644; Harper v. Terminal Co., 187 Mo. 575; Layton v. Chinberg, 282 S.W. 436; Strother v. Railroad Co., 188 S.W. 1102; Yarnell v. Railroad, 113 Mo. 570. (2) Said opinion is in conflict with the following, among other, controlling decisions of this court, holding that where the evidence shows that an injury may have resulted from one of two causes, for one of which, and not the other, the defendant could be held liable, the plaintiff must show with reasonable certainty that the cause for which the defendant could be held liable was the proximate cause of the injury; and that if, as between the two possible causes, the evidence leaves the proximate cause of the injury to speculation and conjecture, plaintiff's case must fail. Warner v. Railroad, 178 Mo. 125; Kane v. Railway Co., 251 Mo. 13; Hamilton v. Railroad, 300 S.W. 792; Van Bibber v. Swift & Co., 286 Mo. 317; Coin v. Lounge Co., 222 Mo. 488; Goransson v. Mfg. Co., 186 Mo. 300; Strother v. Railway Co., 188 S.W. 1105; Fuchs v. St. Louis, 133 Mo. 168. (3) Said opinion is likewise in conflict with the following, among other, controlling decisions of this court, holding that a plaintiff cannot make out his case by building inference upon inference, with no reasonable foundation in the evidence for an inference or inferences so utilized, so that the proximate cause of the injury is left to speculation and conjecture. State ex rel. Macon v. Trimble, 12 S.W. (2d) 727; State ex rel. Public Utilities Co. v. Cox, 298 Mo. 427; Layton v. Chinberg, 282 S.W. 436; Cardinale v. Kemp, 309 Mo. 275; Hamilton v. Railway Co., 250 Mo. 714; Yarnell v. Railroad, 113 Mo. 580. (4) Where the opinion of the Court of Appeals is in conflict with a prior decision of this court upon a like or similar state of facts or which has ruled an identical question of law, or if the opinion of the Court of Appeals contravenes a prior decision of this court regarding any general principle of law announced by this court, certiorari will lie to quash the opinion of the Court of Appeals. State ex rel. City of Macon v. Trimble, 12 S.W. (2d) 730; State ex rel. Pub. Utilities Co. v. Cox, 298 Mo. 427; State ex rel. Ins. Co. v. Trimble, 300 S.W. 812; State ex rel. Boeving v. Cox, 310 Mo. 367; State ex rel. Railroad Co. v. Bland, 313 Mo. 246; State ex rel. Gordon v. Trimble, 300 S.W. 478.

B.H. Dyer, Wm. F. Bloebaum, Alvin H. Juergensmeyer and Hostetter & Haley for respondents.

(1) In an original proceeding in certiorari, under Constitution, Art. VI, Sec. 8, Amendment 1884, the Supreme Court cannot quash the opinion of a court of appeals unless the latter has announced some principle contrary to announcement of the Supreme Court. State ex rel. Buick v. Daues, 19 S.W. (2d) 700; State ex rel. American School of Osteopathy v. Daues, 18 S.W. (2d) 487. (2) In an original proceeding in certiorari the Supreme Court does not determine whether the view of the Court of Appeals is correct or incorrect, but only whether it conflicts with a controlling decision of the Supreme Court. State ex rel. Packing Co. v. Reynolds, 287 Mo. 697; State ex rel. Lehrack v. Trimble, 308 Mo. 597. (3) In original proceedings in certiorari to a court of appeals the writ, under the Constitution, cannot be made to perform the office of a writ of error. State ex rel. Lehrack v. Trimble, 308 Mo. 597. (4) The question of proximate cause is ordinarily one of fact for consideration and determination by a jury. Hogan v. Fleming, 297 S.W. 409; Northern v. Fisheries Co., 8 S.W. (2d) 982; Railway Co. v. Kellogg, 94 U.S. 469. (5) Though causal connection between negligence and injury must be proved by evidence as a fact, direct proof of such fact is not required, and it is sufficient if facts proved are of such a nature and so connected and related to each other that conclusion therefrom may be fairly inferred. Brainerd v. Railroad Co., 5 S.W. (2d) 15; Settle v. Railway, 127 Mo. 341. (6) The doctrine of concurrent negligence is firmly rooted in the jurisprudence of this State. A defendant may be liable, even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with the act of another, or with the act of God, or with an inanimate cause, and became a part of the direct and proximate cause of the injury, although not the sole cause. Northern v. Fisheries Co., 8 S.W. (2d) 982; Hogan v. Fleming, 297 S.W. 404; Harrison v. Electric Light Co., 195 Mo. 606; Brash v. St. Louis, 161 Mo. 433; 45 C.J. 907-910.

COOLEY, C.

This is an original proceeding by certiorari in which relator seeks to have quashed the record of the St. Louis Court of Appeals affirming the judgment for $3500 in favor of plaintiff in a cause wherein Burnice Cregger was plaintiff and the City of St. Charles, relator herein, was defendant.

Plaintiff's action was for damages for the death of her husband, which resulted from his falling from a moving truck at about the intersection of Kingshighway and Sibley Street in defendant city, it being claimed that deceased's fall was due to the negligence of the city in permitting a hole dangerous to travelers to be and remain in the surface of Kingshighway. Respondents in their opinion, Cregger v. City of St. Charles, 11 S.W. (2d) 750, thus state the facts:

"While the directions we shall give are not entirely accurate, it tends to an easy understanding of the situation, and does no violence to the rights of either party, to say that Kingshighway runs from north to south, and that Sibley Street, extending from west to east, intersects, but does not cross, Kingshighway on the west. At the time of the casualty. Kingshighway was constructed with a rock foundation covered with macadam, and was one of the principally traveled streets of the city. At the intersection of the two streets there was a brick walk, extending across, and within, Sibley Street, parallel to the west line of Kingshighway.

"A break in the surface of the macadam, following a washout, had caused a hole to form in Kingshighway, the location of which was variously estimated at from six to ten feet east of the west curb of Kingshighway, and from eight to eighteen feet north of the north line of Sibley Street. The hole, which was about two feet in length, and the same distance in width, was not abrupt, but sloped down to the center, where its greatest depth of five or six inches was to be found. It was shown that the hole had existed in the surface of the street for as much as two months prior to the day in question, and was not repaired by the city until within one or two hours after the body of decedent was removed.

"Shortly before seven o'clock, on the morning of December 12, 1925, one Robert M. Summers was driving southwardly on Kingshighway toward Sibley Street in his Ford truck, accompanied by two other men, one of whom was sitting with Summers in the seat, while the other sat in the door of the cab, with his feet resting upon the running board. The truck was constructed in the ordinary manner, having a cab in the front, extending three feet, or slightly more, above the floor of the bed, which was five feet in width, and eight feet in length, with sides seventeen inches in height. The rear spring and the tires of the truck were described as solid. Approximately two blocks north of Sibley Street, Summers observed decedent, with whom he had been acquainted for seven or eight months, walking southwardly on the sidewalk on the west side of Kingshighway, carrying his dinner pail in his hand; and he invited the latter to ride to work in the truck, as he had also had occasion to do on the previous morning. Decedent, who was about six feet in height, climbed into the bed of the truck, and stood with his left hand on the top of the cab, meanwhile holding his dinner bucket in his right hand, after which he was never again seen alive.

"As Summers approached Sibley Street, he veered his course slightly to the left towards the center of Kingshighway, to make a right-hand turn, and, just as he did so, his right rear wheel dropped into, and passed through, the hole at a point three or four inches from its edge, producing `quite a little jar,' as well as a `considerable jerk,' when the wheel left the hole. He made the turn at a speed of twelve or fifteen miles an hour, and continued onward to his destination, when it was found that decedent was missing. Summers and his companions thereupon retraced their course in search of decedent; and, when they arrived at the intersection of Kingshighway and Sibley Street, they saw his body lying in the street, having meanwhile been discovered by one East, a delivery boy, at approximately ten minutes of seven o'clock.

"The body was resting on the stomach and lay diagonally in the street, with the head to the north...