Hedgcorth v. Missouri Pacific Railroad ( 1979 )

MAUS, Judge

(dissenting).

I must respectfully dissent. The majority opinion holds that the plaintiff did not make a submissible case because he knew the door was bent. Thereby, the defendants did not breach their duty to exercise ordinary care to provide a reasonably safe car and either make repairs or warn of an unsafe condition.

I do not believe that plaintiff’s knowledge of the bent door per se bars the plaintiff from submitting his case to the jury. Such a holding is tantamount to holding that the plaintiff was required to establish that he did not know and by using ordinary care could not have known of the dangerous condition. While Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573 (Mo. banc 1978) uses language of warning, that case expressly approves a verdict directing instruction which in no way submits the plaintiff’s lack of knowledge of the defective condition.

The liability of the railroad has been compared to the liability of a possessor of land to invitees. If that be the correct measure of the railroad’s duty, the plaintiff is confronted with the requirement set forth in numerous cases ¹ and summarized in MAI 22.03 “Second, plaintiff did not know and by using ordinary care could not have known of this condition.” Of course, in paragraph first that instruction submits a finding of a defective condition and “as a result the floor was not reasonably safe for customers.” But, even under the rule summarized by paragraph second, the plaintiff’s knowledge the door was bent should not defeat his submissible case. The decisive question is whether or not an invitee must prove that he had no knowledge, actual or constructive, of the physical condition, or if his evidence must show no knowledge, actual or constructive, that the condition was not reasonably safe. Or, stated alternatively, is a possessor (railroad) absolved only if the invitee has actual or constructive appreciation of the risk involved.

Strangely, I find a dearth of authority in this state on this precise point. Perhaps, this is because the language, knowledge of the “condition”, by implication includes knowledge of the risk involved.² Perhaps it is because the cases using such terminology have dealt with defects and circumstances under which the plaintiff upon knowing of the defect would, as a matter of law, be held to appreciate the risk involved.³

The Restatements, Law of Torts, have been regarded, if not authoritative, certainly as persuasive, by our courts.⁴ Restatement (First) of Torts § 340 provides a possessor is not liable to invitees or licensees “if they know of the condition and realize the risk involved therein.”⁵ (Emphasis added) Paragraph b of the comment to this section states: “The words ‘the risk’ denote not only the existence of a risk but also its extent. Thus, ‘knowledge’ of the risk involved in a particular condition implies not only that the condition is recognized as dangerous but also that the chance of harm and the gravity of the threatened harm are appreciated.” ⁶

Recently adopted MAI 22.07 requires only a finding that a licensee “did not know and by using ordinary care could not have discovered that such condition was not reasonably safe.” (Emphasis added)

The rule that an invitee as a part of his cause must establish that he had no knowledge, actual or constructive, of the condition (referred to as the “no duty rule”) is similar to the defense of contributory negligence.⁷ For a defense of contributory negligence to be valid, it is essential that a plaintiff appreciate the risk.⁸

It is true that to establish liability an invitee must establish that a possessor had actual or constructive knowledge of the defective condition. By necessary implication this would mean an appreciation of the risk involved. It may then be argued, as so often stated, that the liability of the possessor is based upon superior knowledge ⁹ and if the invitee knows of the defect, there can be no superior knowledge, actual or constructive. However, this argument does not take into consideration the relative positions of the parties under the circumstances. For example, the railroad had possession of the car for such length of time as it determined. It was the duty of the railroad to exercise reasonable care to see that employees could use the car for loading or unloading with reasonable safety. This included the duty to inspect.¹⁰ On the other hand, the plaintiff was confronted with a car which needed to be used without delay to carry on the business of his employer. A jury could find that the possessor in the exercise of ordinary care should discover the condition and appreciate the risk when an invitee need not do so.¹¹

For the reasons stated, I am persuaded that the fact the plaintiff knew the door was bent does not mean that he did not make a submissible case. Before the plaintiff’s knowledge destroys his submissible case, it should be required that the plaintiff had actual or constructive knowledge that to attempt to raise and lock the door was not reasonably safe.¹² This is not conclusively established by the evidence. In fact, the evidence could be found to demonstrate the contrary. The railroad, if not habitually, at least frequently delivered cars with similar defects. The plaintiff had many times used those cars, even with the aid of the truck to raise the door, without incident. There was evidence that had plaintiff rejected all cars similar to the one in question, he would have rejected about half of the cars provided by the defendant. He said he thought the car was reasonably safe. Under the circumstances his knowledge, actual or constructive, of the risk involved should be for the jury.

However, the action of the trial court must be sustained if the plaintiff’s evidence did not establish the defendant’s negligence was the proximate cause of his injury. This point is approached with considerable reluctance for “There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion.” Prosser on Torts, § 41, p. 236 (4th Ed. 1971). The question is: was the bent door, which the jury could find not reasonably safe because it could not be raised to an upright position where it could be locked, as a matter of law not the proximate cause of plaintiff’s injuries?

The opinions do not establish a definition of proximate cause which can be uniformly applied in all cases.¹³ One test has been said “to be whether ‘the facts show that the injury would not have occurred in the absence of the negligent act.’ ” Dintelman v. McHalffey, 435 S.W.2d 633, 636 (Mo.1968). This could more properly be called a test of causal connection. “The causal connection must be proved, but direct proof of the connection is not required, it being sufficient if the facts proved are of such nature and so connected and related that the conclusion of causal connection may be fairly inferred. . . . Plaintiff’s evidence need not exclude all other possible causes, save that of defendant’s negligence; she has met her burden once she establishes causal connection and beyond that, other possible causes, if any, are a matter of defense.” Joiner v. Kurt’s Chip-A-Way Park, Inc., 510 S.W.2d 773, 775 (Mo.App.1974).

In this case, the jury could find that the bent door necessitated the use of the chain and the truck; and that because it was bent the door could not be raised to the anticipated position and the chain broke. It could be reasonably inferred that absent the bent door the injury would not have occurred.

However, the test of causal connection does not per se.establish proximate cause. Causal connection could extend liability beyond the limits otherwise imposed by the law. For example, the act of one leaving the keys in an automobile, which is stolen by a thief who negligently injures a plaintiff, has been held to be not the proximate cause of such injuries.¹⁴ There have been many other definitions of proximate cause.

“ ‘Generally, it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances ■ leading up to the injury. The test is not whether a reasonably prudent person would have foreseen the particular injury

but whether, after the occurrences, the injury appears to be the reasonable and probable consequences of the act or omission of the defendant.’ . . . ‘Proximate cause is commonly, and best, defined as that cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which the result would not have occurred. . In other words, it is sufficient to constitute proximate cause that the negligence for which recovery is sought was the efficient cause which set in motion the chain of circumstances leading up to the injury itself .... and the primary cause will - be the proximate cause where it is so linked and bound to the succeeding events that all create or become a continuous whole, the first so operating upon the others as to make it primarily productive of the injury. . . ” Thebeau v. Thebeau, 324 S.W.2d 674, 678 (Mo. banc 1959). Also see Foley v. Hudson, 432 S.W.2d 205 (Mo.1968).

Often the question of proximate cause is most appropriately resolved by a determination of whether or not the injuries were the result of an efficient, intervening cause. Dickerson v. St. Louis Public Service Company, 286 S.W.2d 820 (Mo. banc 1956). This lends no easy solution, but leads to a determination of what is an efficient, intervening cause.

A general definition is “an efficient, intervening cause is a new and independent force which so interrupts the chain of events as to become the responsible, direct, proximate and immediate cause of the injury.” Dickerson v. St. Louis Public Service Company, supra, at 824.¹⁵ Perhaps the best way to narrow the definition for this case is a definition of what is not an intervening cause. “The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.” Restatement (Second) of Torts § 443, p. 472.¹⁶

When the railroad repetitively supplied defective cars, which had been used without injury, it was a normal consequence that an attempt would be made to use the car in question. “Thus, ... a defendant will be required to anticipate that workmen who are furnished with a defective appliance may be expected to try to make it work . . . .” Prosser, Torts, § 44, pp. 273-274, (4th Ed. 1971). The jury could find the door was not only difficult to raise, but could not be raised to the anticipated position and thereby the chain broke. After the event, knowing this situation, it should not be said as a matter of law the breaking of the chain was so extraordinary as to be an intervening cause.

It is no answer to assert the plaintiff was guilty of contributory negligence. If he was, that conduct might be an intervening cause, but those are questions for the jury.¹⁷ If he was not, his normal reaction to the situation should not be said to be an intervening cause. The same considerations apply to the conduct of those assisting the plaintiff, with the additional observation that even assuming those fellow employees were negligent, unless that negligence be imputed to the plaintiff, such negligence should not bar the plaintiff.¹⁸

“Cases might be cited pro and con ad infinitum on this subject but, after all, each case depends upon its own particular facts and it is seldom that one decision really controls another.” Price v. Seidler, 408 S.W.2d 815, 820 (Mo.1966).¹⁹

“Usually, of course, the question of proximate cause (either sole or concurring) is a jury question.” Dickerson v. St Louis Public Service Company, supra, at 826. Also, Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7 (Mo.App.1974).

By this unduly long dissent, I do not intend to, and also do not think I advocate any new principles of law. “In this matter questions of proximate cause and efficient, intervening cause are inseparably interwoven. They are not easy of solution, and we repeat the oft-used principle that in this determination each case must stand on its own individual facts; the final result boils down largely to a construction of the evi-dentiary situation.” Dickerson v. St. Louis Public Service Company, supra, at 824. I do believe that under the particular circumstances of this case, where the railroad repetitively supplied cars with bent doors, the plaintiff and others through various devices, including the use of a chain and a truck, used those cars without injury, the issues of the railroads’ negligence (including plaintiff’s constructive appreciation of the risk), proximate cause, and plaintiff’s contributory negligence should, under proper instructions, be submitted to a jury.

1 . For example, Sellens v. Christman, 418 S.W.2d 6 (Mo.1967).

2 . “Dangerous condition,” Cupp v. Montgomery, 408 S.W.2d 353, 358 (Mo.App.1966) “Where the danger is obvious or known to the invitee he consents to the risk and the inviter owes no duty.” Sellens, supra, n. 1, at p. 9.

3 . A greasy floor, Hokanson v. Joplin Rendering Company, Inc., 509 S.W.2d 107 (Mo.1974); an open tressle, Arbogast v. Terminal Railroad Assn. of St. Louis, 452 S.W.2d 81 (Mo.1970); an empty elevator shaft, Senseney v. Landay Real Estate Co., 345 Mo. 128, 131 S.W.2d 595 (1939).

4 . Hokanson, supra, n. 3; Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969); Albers v. Gehlert, 409 S.W.2d 682 (Mo.1966); Weber v. Hinds, 440 S.W.2d 129 (Mo.App.1969).

5 . Wells, supra, n. 4 adopted § 342 of Restatement (First) of Torts; § 340 is to be considered in conjunction with § 342.

6 . Restatement (Second) of Torts §§ 342 and 343A and the comments thereto have similar language.

7 . “Clearly the no duty rule also bears a strong resemblance to the doctrine of contributory negligence, and it has been stated that while it is often difficult to determine from the language used by the court in a particular case whether recovery was denied under the no duty rule, or on the theory of assumption of risk, or of contributory negligence, regardless of the terms employed, the underlying principle on which the court relied was contributory negligence.” 62 Am.Jur.2d, Premises Liability, § 71, p. 323. In Daniel v. Childress, 381 S.W.2d 539, 542 (Mo.App.1964) this court said: “[W]e find it unsatisfying to consider negligence of the master and assumption of risk of the employee separately, for the same facts determine both negligence and assumption of risk, and there is really only one question.”

8 .“In a situation in which one’s knowledge of general conditions from which danger arose is not necessarily knowledge and appreciation of that danger, before one charged with contributory negligence can be convicted thereof, there must be a finding that he acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury which his conduct involved.” Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217, 221 (Mo.1971). Also, Burk v. Missouri Power & Light Company, 420 S.W.2d 274 (Mo.1967); Bollman v. Kark Rendering Plant, 418 S.W.2d 39 (Mo.1967).

9 . Sellens, supra, n. 1; Kenward v. Hultz, 371 S.W.2d 344 (Mo.App.1963); Dixon v. General Grocery Company, 293 S.W.2d 415 (Mo.1956).

10 . Settle v. Baldwin, 355 Mo. 336, 196 S.W.2d 299 (1946); Stoutimore v. Atchison, T. & S. F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658 (1936).

11 . In Brice v. Union Electric Co., 550 S.W.2d 629 (Mo.App.1977) an invitee was not barred by failing to discover a protruding nail in a junk yard when the possessor was held to have constructive knowledge. The superior knowledge of the invitee was of importance in Hok-anson, supra, n. 3. In Kenward, supra, n. 9, the fact the plaintiff who was working in the bottom of a trench, was a graduate engineer was significant. Compare Albers, supra, n. 4, where the defendant required the plaintiff to walk over an icy walk.

12 .In Larson v. Atchison, T. & S. F. Ry. Co., 364 Mo. 344, 261 S.W.2d 111 (1953), a railway mail clerk heard another say “watch the catcher arm, that it worked hard,” yet the court said 261 S.W.2d at p. 115 “It may not be said here that the plaintiff received such a warning or had such knowledge that the railroad had discharged its obligation to him.” The statement of the court in Brice v. Union Elec. Co., 550 S.W.2d 629, 632 (Mo.App.1977), where an invitee stepped on a nail in a junk yard seems appropriate: “[Hjowever, his knowledge óf the general condition from which the danger arose did not necessarily constitute knowledge and appreciation of the danger actually encountered.” *

13 . Boyd v. Terminal Railroad Association of St. Louis, 289 S.W.2d 33 (Mo.1956).

14 . Dix v. Motor Market, Inc., 540 S.W.2d 927 (Mo.App.1976).

15 . The factors to be considered are set forth in Restatement (Second) of Torts § 442.

16 . “The word ‘normal’ is not used in this Section in the sense of what is usual, customary, foreseeable, or to be expected. It denotes rather the antithesis of abnormal, or extraordinary. It means that the court or jury, looking at the matter after the event, and therefore knowing the situation which existed when the new force intervened, does not regard its intervention as so extraordinary as to fall outside of the class of normal events.” Restatement (Second) of Torts § 443, pp. 472-473.

17 . “However, we need not prolong this opinion by a discussion of proximate cause, for defendant’s argument on this subject is commingled and merged with his argument that plaintiffs’ decedent was guilty of contributory negligence as a matter of law . . Walker v. Massey, 417 S.W.2d 14, 21 (Mo.App.1967). For a discussion of intervening cause and contributory negligence see 57 Am.Jur.2d, Negligence § 218 (1971). For a discussion of this aspect in an F.E.L.A. case see Boyd, supra, n. 13.

18 . Unless that negligence is so extraordinary as not to be reasonably foreseeable. Dickerson v. St. Louis Public Service Company, 286 S.W.2d 820, 825 (Mo. banc 1956).

19 . The following cases seem worthy of note. Dickerson, supra, n. 8; Boyd, supra, n. 13; Price v. Seidler, 408 S.W.2d 815 (Mo.1966); Green v. Kahn, 391 S.W.2d 269 (Mo.1965) and Gathright v. Pendegraft, 433 S.W.2d 299 (Mo.1968). A collection of cases is set forth in Strake v. R. J. Reynolds Tobacco Co., 539 S.W.2d 715 (Mo.App.1976).