State ex rel. Hauck Bakery Co. v. Haid

• Citation: 62 S.W.2d 400,333 Mo. 76
• Decision Date: 24 June 1933
• Docket Number: 32344
• Parties: State of Missouri at the Relation of Hauck Bakery Company, Relator, v. George F. Haid, William Dee Becker and Simon G. Nipper, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

62 S.W.2d 400

333 Mo. 76

State of Missouri at the Relation of Hauck Bakery Company, Relator, v. George F. Haid, William Dee Becker and Simon G. Nipper, Judges of the St. Louis Court of Appeals

No. 32344

Supreme Court of Missouri

June 24, 1933

Writ quashed.

Fred H Blades, George F. Wise, Holland, Lashly & Lashly and Donnell & McDonald for relator.

(1) The alleged excessive speed of relator's truck was not the proximate cause of plaintiff's injuries, and the opinion of respondents, holding relator liable for said alleged excessive speed, is in conflict with controlling decisions of this court, which hold that the proximate cause of an injury is the efficient, producing cause thereof. Borack v Mosler Safe Co., 231 S.W. 623, 288 Mo. 83; Wood v Wells, 270 S.W. 332; DeMoss v. Kansas City Rys Co., 246 S.W. 566, 296 Mo. 526; Bishop v. Wight, 221 F. 392; Wecker v. Grafeman-McIntosh Ice Cream Co., 31 S.W.2d 974; State ex rel. v. Ellison, 196 S.W. 1088, 271 Mo. 463; State ex rel. v. Cox, 276 S.W. 869, 310 Mo. 367; Dilger v. Whittier, 164 P. 49, 33 Cal.App. 15; Hatcher v. Burlett, 119 So. 748, 11 La. App. 129; Frisbie v. Fidelity Casualty Co., 133 Mo.App. 30, 112 S.W. 1024. (2) Relator's truck was not traveling at an excessive rate of speed, the only purported evidence that it was so traveling was the testimony of plaintiff himself, and plaintiff was not able to judge of the speed of said truck, because the said truck was moving directly towards him. Strauchon v. Met. St. Ry. Co., 232 Mo. 599, 135 S.W. 14; Unterlachner v. Wells, 317 Mo. 195, 296 S.W. 755. (3) When the Court of Appeals permits liability to be imposed upon a defendant for negligence which is not the proximate cause of injuries, this court will quash the record of the Court of Appeals on certiorari, and it is not necessary that the facts of the case be the same as the facts in a prior decision of this court. State ex rel. v. Ellison, 196 S.W. 1088, 271 Mo. 463; State ex rel. v. Cox, 276 S.W. 869, 310 Mo. 367.

Everett J. Hullverson and Allen, Moser & Marsalek for respondents.

(1) To warrant quashal in certiorari case there must be a clear conflict between the opinion of the Court of Appeals and opinions of this court involving the same or similar facts. State ex rel. St. Charles v. Haid, 325 Mo. 107. (2) The opinion of the respondents, relative to the question of proximate cause, announces no rule contrary to this court's pronouncements, nor does it reach a legal conclusion contrary to this court's rulings upon the same or similar facts. Hogan v. Fleming, 317 Mo. 524. (a) The existence of a causal connection between the defendant's negligence and the plaintiff's injury is ordinarily a question of fact for the jury. Northern v. Chesapeake & Gulf Fisheries Co., 320 Mo. 1011; State ex rel. St. Charles v. Haid, supra. (b) The opinion is in accord with the well-established rule that it is not necessary that plaintiff prove, by positive evidence or mathematical calculation, that the excessive speed of defendant's vehicle caused the collision. The causal relation may be inferred by the jury from the circumstances. Stotler v. Railroad Co., 200 Mo. 136; Goodwin v. Eugas, 290 Mo. 673; Hoelker v. American Press, 317 Mo. 64; Lewis v. Independent Packing Co., 3 S.W.2d 244. (c) Under the general rule the trial court can sustain a demurrer to the evidence only when the evidence and the inferences therefrom are so strongly in favor of the defendant that reasonable minds could not differ. Buesching v. Gaslight Co., 73 Mo. 219. (d) The plaintiff was not bound by the testimony of relator's chauffeur as to the alleged decrease in the speed of his truck from forty-five miles per hour to twenty miles per hour at the time he reached the intersection, nor by his testimony that he did not see the Franke truck skidding until he reached the middle of Kraus Street. There was ample basis in the record for diverse findings on these subjects, and consequently it was for the jury to say where he was and how fast he was going when he first saw the Franke truck skidding. Gould v. Railroad Co., 315 Mo. 722; Maginnis v. Railroad Co., 268 Mo. 675; Lauck v. Ries, 310 Mo. 202. (e) Obviously the trial court could not properly have directed a verdict for the relator upon speculation as to what would have occurred if the trucks had not collided. It is only when a conclusion, based upon the supposed action of physical forces, is inevitable that the court can take the issue from the jury on such ground. Northern v. Chesapeake & Gulf Fisheries Co., 320 Mo. 1032; Kibble v. Railroad Co., 285 Mo. 618; McCray v. Railroad Co., 321 Mo. 24. (f) It is not essential that the relator's chauffeur should have been able to anticipate the exact manner in which the injury occurred, that is, that relator's truck would be pushed upon the sidewalk as the result of a collision with the Franke truck. He was required to anticipate that harm was likely to befall someone as a result of such a collision, and that is all that is essential. Hogan v. Fleming, supra; McCray v. Railroad Co., 321 Mo. 17; Myers v. Kennedy, 306 Mo. 268; Brooks v. Menaugh, 284 S.W. 803. (9) If the relator's negligence combined with that of the operator of the Franke truck to cause plaintiff's injury, relator is liable, even though its negligence would not have produced the injury, absent such other intervening cause. Harrison v. Electric Light & Power Co., 195 Mo. 606; Hogan v. Fleming, supra. (3) The respondents' ruling that the question of negligent speed was for the jury is not in conflict with this court's rulings. Whether the speed of a vehicle is negligent, under the common law, is a question for the jury, to be determined in view of all the circumstances and the exigencies of the situation. Hicks v. Simonsen, 307 Mo. 307; Woods v. Kansas City L. & P. Co., 212 S.W. 902; Haake v. Davis, 166 Mo.App. 254; Ginter v. O'Donoghue, 179 S.W. 734; Engelman v. St. Ry. Co., 133 Mo.App. 520.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Original proceeding in certiorari whereby, because of alleged conflict with decisions of this court, relator seeks to have quashed the opinion and record of the St. Louis Court of Appeals in a certain cause appealed to that court from the Circuit Court of the City of St. Louis, wherein Nat Cunningham was plaintiff and relator, Hauck Bakery Company and Arthur and Louis Franke were defendants. The action was for personal injuries sustained by Cunningham and claimed by him to have resulted from a collision between relator's truck and one owned by the Frankes. Cunningham obtained judgment against all the defendants, from which this relator appealed. The Court of Appeals affirmed the judgment. The facts and conclusions of law involved in the question of alleged conflict are thus stated by respondent judges in their opinion:

"Pending the appeal, Nat Cunningham died, and his administratrix has been substituted as respondent. The accident happened in the City of St. Louis, at the intersection of Kraus street and Broadway. Broadway runs north and south, and is occupied in the center by two street car tracks. Kraus street runs east and west, and is about thirty-two feet wide. The accident occurred about 11 o'clock in the morning. The day was very wet and rainy.

"Plaintiff testified that he came to the scene of the accident on a southbound Broadway street car, alighting at the northwest corner of the intersection. When he got off the car he saw a manure truck driven by the Frankes coming southwardly on Broadway. He looked toward the south and saw the truck of the Hauck Bakery Company. He walked toward the northeast corner of the intersection, and about the time he reached the east curb he saw the Hauck Bakery Company truck again, and it was at that time about a half block away, and according to his testimony, coming at a rate of speed of forty or forty-five miles an hour. Plaintiff then jumped upon the sidewalk. He was carrying a bundle. He got upon the sidewalk and started to set his bundle down when he was struck by the Hauck Bakery Company truck. There was a collision between the Franke truck and the other truck. The Hauck Bakery truck was knocked onto the sidewalk by the Franke truck, and struck and injured plaintiff. Plaintiff in describing the accident referred to a chart or diagram, and it was very difficult to understand from his testimony the details of the accident. It does appear, however, that the Franke truck was coming south on Broadway and on the street car tracks. The street being very slick and slippery, the Franke truck started slipping and sliding before it reached the street intersection, and slid over against the east side of Broadway and struck the Hauck Bakery truck, and knocked it upon the sidewalk, where it struck plaintiff and injured him.

"The driver of appellant's truck testified that he was driving the same northwardly on the east side of Broadway. He was going about eighteen or twenty miles an hour when he approached the intersection of Broadway and Kraus street. He saw the Franke truck then about a half block away. He then proceeded on across Kraus street. When he had got about half-way he noticed the Franke truck skidding and slipping over the street. He pulled toward the east curb of Broadway and slowed down, and had nearly come to a stop when the Franke truck struck him. The Franke truck struck the bakery truck about opposite the driver's seat, and pushed or shoved it upon the sidewalk. This driver of the Hauck Bakery truck stated that he was about twenty feet south of the south curb line of Kraus street when he first saw the Franke truck and saw it skidding as he pulled into Kraus street. When he first saw the Franke truck skidding he was going about eighteen miles an hour, according...