Strake v. R. J. Reynolds Tobacco Co., s. 36777

• Decision Date: 13 July 1976
• Docket Number: 36778,Nos. 36777,s. 36777
• Citation: 539 S.W.2d 715
• Parties: Frank A. STRAKE, Plaintiff-Respondent, v. R. J. REYNOLDS TOBACCO CO., a corporation, et al., Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 715

539 S.W.2d 715

Frank A. STRAKE, Plaintiff-Respondent, v. R. J. REYNOLDS TOBACCO CO., a corporation, et al Defendants-Appellants.

Nos. 36777, 36778.

Missouri Court of Appeals, St. Louis District, Division Three.

July 13, 1976.

Evans & Dixon, Eugene K. Buckley, St. Louis, for defendants-appellants.

Hearnes, Padberg, McSweeney & Slater, Godfrey P. Padberg, St. Louis, for plaintiff-respondent.

KELLY, Judge.

These appeals from a judgment of the Circuit Court of the City of St. Louis awarding the plaintiff-respondent, Frank A. Strake, damages in an amount of $60,000.00, have their genesis in automobile collisions occurring on February 15, 1973, on Washington Avenue, just west of its intersection with Pendleton Avenue, in the City of St. Louis. We reverse the judgment as to appellant James Bullock and affirm as to appellants R. J. Reynolds Tobacco Company and Gary L. Thornton.

Respondent and appellant Bullock were operating their respective automobiles eastwardly on Washington Avenue sometime between 9:00 and 9:15 a.m. on the morning of February 15, 1973, with respondent proceeding ahead of Bullock's automobile. There had been a snowfall during the preceding night and at the time of the occurrence in evidence there were patches of ice and snow on Washington Avenue. Washington Avenue is a four-lane street; two lanes for eastbound and two lanes for westbound traffic. Respondent was driving in the inside lane because there was less ice and snow in that traffic lane for eastbound traffic by reason of its use by prior traffic. As he approached the intersection of Pendleton Avenue respondent slowed down and brought his car to a stop to allow a truck on Pendleton Avenue to cross the intersection. In doing so, he pulled slightly into the outside traffic lane on Washington Avenue so that there was sufficient room for other eastbound traffic to pass him without going into the westbound traffic lane on Washington Avenue. According to respondent, after he had his car stopped for a half minute to a minute, he was struck from behind by another motor vehicle driven by Mr. Bullock. Bullock testified that despite the fact he applied his brakes he could not stop his car from sliding and it slid a distance of about one or one and one-half car lengths into the rear of respondent's car.

After the collision between the Bullock car and respondent's car, both drivers existed from their respective motor cars and agreed to separate the two vehicles. Respondent moved his car forward and Bullock backed his car so that when it came to a stop it was approximately three feet from the center line of Washington Avenue, and both cars were straddling the two eastbound traffic lanes. Nevertheless, eastbound traffic continued to pass the two cars as they sat in the street by going partially into the westbound traffic lanes of Washington Avenue, while respondent and Bullock exchanged information about insurance and other matters. Respondent did not sustain any injury in this first collision.

With the two cars so situated and while the respective drivers were continuing their discussion with respondent standing to the side of his car nearest the center of Washington Avenue and leaning on the trunk of his car as he wrote down the information he was getting from Bullokc--5 or 10 minutes after the initial collision--a second collision occurred wherein Mr. Thornton, the operator of the third car involved, ran into the Bullock car pushing it into the respondent's car, knocking respondent away from his car and causing him to sustain the injuries for which damages were sought in this case.

On appeal Bullock contends that the trial court erred 1) in failing to sustain his motion for a directed verdict for the reason that his negligence in colliding with the rear of respondent's automobile was not the proximate cause of the injuries sustained by respondent, or in the alternative, 2) that he is entitled to a new trial on the issues of damages or an order of remittitur (a) by reason of an alleged error in the giving and submitting to the jury MAI 4.01 instruction on damages, and (b) the damages awarded respondent were so excessive as to be the result of mistake or honest error by the jury. Because we hold that the trial court erred in failing to sustain appellant Bullock's motion for a directed verdict at the close of the plaintiff's evidence we reverse the judgment as to appellant Bullock, and we do not reach the merits of the other points he relies on in this appeal.

Paragraph 2 of respondent's Amended Petition--on which the cause came on for trial--alleged that Mr. Bullock 'negligently and carelessly drove and operated his automobile in an eastwardly direction on Washington Avenue and into collision with the rear end of plaintiff's vehicle.' In Paragraph 5 of this Amended Petition he also pled that the 'defendants were negligent and careless in the following respects,' which, in shortened form were: 1) excessive speed under the circumstances, 2) permitting the front end of their automobiles to collide with the rear end of the automobiles directly in front of them, and 3) failure to keep and maintain a lookout ahead and laterally.

Respondent submitted his case against Mr. Bullock to the jury on the ground that Mr. Bullock was negligent in permitting his automobile to come into collision with the rear of Dr. Strake's automobile and that negligence either directly caused damage to Dr. Strake or combined with the acts of Mr. Thornton to directly cause damage to Dr. Strake. By this submission all other grounds of negligence against Mr. Bullock were abandoned, and on appeal our inquiry is whether respondent proved a submissible case on the charge submitted to the jury. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 95(4, 5) (banc 1941); Herr v. Ruprecht, 331 S.W.2d 642, 647(2) (Mo.1960); Bolhofner v. Jones, 482 S.W.2d 80, 82 (Mo.App.1972).

The issue becomes whether Mr. Bullock's negligent conduct in permitting his automobile to come into collision with the rear of Dr. Strake's automobile, either alone or combined with the negligence of Mr. Thornton in colliding with the rear of Mr. Bullock's automobile some 5 to 10 minutes after the initial collision between Mr. Bullock's automobile and Dr. Stake's automobile was the proximate cause of Dr. Strake's injuries.

The general rule is that a defendant need not be the sole cause of plaintiff's injuries for liability for said injuries to be imposed; liability attaches if his negligence combines with another's to produce the injuries for which damages are sought. Dulley v. Berkley, 304 S.W.2d 878, 882(5) (Mo.1957). Where two or more persons, acting independently are guilty of consecutive acts of negligence which are closely related in point of time, whether they are liable for the injuries sustained by the plaintiff jointly or severally becomes a question of proximate cause. 'The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred.' King v. Ellis, 359 S.W.2d 685, 688(2) (Mo.1962). Generally, an efficient, intervening cause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate and immediate cause of the injury but it may not consist merely of an act of concurring or contributing negligence. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824(3) (Mo. banc 1956), Penberthy v. Penberthy, 505 S.W.2d 122, 127(6) (Mo.App.1974). The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence. Dickerson v. St. Louis Public Service Co., supra, l.c. 824($4). In deciding whether a plaintiff's injuries were caused by defendant's negligence each case must be decided on its own independent facts and it is seldom that one decision controls another. Price v. Seidler, 408 S.W.2d 815, 820(3) (Mo.1966).

Both appellant Bullock and the respondent have cited a number of cases in support of their respective positions on appeal. It would serve no purpose to review each case, its factual situation, and holding here. For those interested in reading those authorities, we have included them in a footnote. ¹ The evidence here shows clearly that respondent sustained no personal injuries as a direct result of the first collision, and he has made no claim for any property damages sustained by the collision of Mr. Bullock's car with the rear end of his motor vehicle. All of the injuries which are the basis for damages respondent seeks to recover followed the second impact some 5 or 6 minutes after the initial collision and while the drivers of both of those cars were standing in the public street discussing the occurrence of the first collision. For respondent to recover against Mr. Bullock for the injuries he unquestionably sustained in the second collision, it is necessary that he establish that the negligence of Mr. Bullock 'concurred' with the negligence of Mr. Thornton to cause his injuries.

We conclude from the evidence in this case that the negligence of Mr. Thornton in colliding with the car of Mr. Bullock and pushing it forward into the car of Dr. Strake causing Dr. Strake to be knocked to the pavement and sustain injury was, as a matter of law an independent intervening act of negligence for which Mr. Bullock was not liable. The distinction between a 'concurring' negligent act and an 'intervening' negligent act is not always clearly defined. However, the term 'intervening' in a case of this type is used in the concept of time and refers to 'later events.' Here, Mr. Bullock's negligence, permitting his vehicle to come into collision with the rear of Dr. Strake's motor car, had culminated 5 to 10 minutes before Mr. Thornton's car collided with the rear of Mr....