Demoss v. Kansas City Railways Co.

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 Two 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 four or five o'clock p.m., plaintiff and her husband, John H. DeMoss, were proceeding eastward upon Fifteenth Street in Kansas City, Missouri, in an automobile owned and operated by Mr. DeMoss, 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 down grade to the north at the intersection. One of defendant's cars moving northward on the cast 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 down grade in Prospect Avenue caused the street car to move forward more quickly that 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 seventy-five feet away, and that she saw it start forward suddenly when the automobile was about thirty-five or forty 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 nine or ten 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 oncoming automobile, without preliminary warning and without the motorman looking to the west immediately before starting the car. It may be assumed for the purposes 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 not 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. Plaintiffs 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 thirty-five or forty feet when going at a speed of nine or ten 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. Ry. Co., 85 Mo l.c. 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.] 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 Two 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 Company, 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 an 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.