195 Mo. App. 470 | Mo. Ct. App. | 1917
Prom a statement of counsel in argument we learn that plaintiff and several other young persons with whom he was in company, were returning home at night from a neighborhood entertainment, when he was run over by an automobile and injured on a street in Kansas City. He, and the others, were interrupted in their walk along the sidewalk by building material piled over the sidewalk space extending beyond the curb out into the street, and were, in consequence, compelled to walk out in the street around the material, and while doing so an automobile approached from the rear at terrific speed, ran over
Turning to the petition, we find it to be alleged therein, that the owners of the lot and the contractor for the building deposited in the sidewalk space and roadway an unreasonable and excessive quantity of building material which obstructed- the passage of pedestrians along the sidewalk and occupied a large portion of the road way almost to the middle of the street, which compelled plaintiff to walk out near the center of the street to avoid the obstruction. That while he was thus lawfully upon the roadway, while in the exercise of ordinary care, he was run over by an automobile owned by one, and driven by another, of defendants, greatly injuring him. It is then alleged that the driver of the automobile was negligent in that he drove the car at the high rate of speed of thirty miles per hour, which was also in violation of a city ordinance regulating speed.
It is then alleged that by the owners, and the contractor, so negligently placing and depositing the unreasonable and excessive quantity of building material in the street as above stated, they interfered with and prevented the safe passage of the public along the sidewalk and compelled plaintiff to go around into and along the roadway of the street, when they well knew of the passing of automobiles along the street at high and dangerous rates of speed, and that they should have foreseen injury to pedestrians. It is also alleged that these defendants violated a city ordinance
In order to sustain an action for negligence it is necessary that such negligence should be the proximate cause of the injury, and the controversy here is, whether the allegations as above summarized show that the negligence of the defendants was the proximate cause of the injury to plaintiff. The immediate or proximate cause of an injury was doubtless first fixed upon as the only actionable cause, from apparent necessity and practicability. Since a cause for any given action, or happening, can be traced back indefinitely, it became necessary to arbitrarily limit the illimitable, so to speak, by stopping at the proximate cause. For, it was said, to run further back would be endless confusion, with results ‘frequently utterly impracticable. Lawyers-from early times, induced by the ordinary meaning of words, and seeming necessity, have been led into the thought that since the word, “proximate” means immediate, or next to, the only actionable cause is the cause which actually did the injury; and that any prior cause, no matter how closely related, was a removed cause and therefore not proximate, and therefore not actionable. There is no doubt that many decisions have been rendered and many definitions stated on that idea. This may be seen by the following taken from Wharton’s Law of Negligence, sec. 134: “Supposing that if it had not been for the intervention of a responsible third party the defendant’s negligence would have produced no damage to the plaintiff, is the defendant
The reasoning in Andrews v. Kinsel 114 Ga. 390 and Setter v. City of Maysville, 114 Ky. 60, is along the line of these definitions, and therefore, while not saying those cases were not , correctly decided, we would prefer not to rely on the mode of arriving at such decisions. Later cases in both States, as we shall presently see, announce the law in more satisfactory language.
It is stated in 1 Shearman & Redfield on Negligence (4.Ed.), sec. 26, note 3, that in order to hold the first wrongdoer liable, his act must be such as will “inevitably” cause the injury. But the error of this was, perhaps,- seen and the note was dropped from subsequent editions.
•When the rule is stated in its full breadth, viz, that á separate intervening cause will break the line of causation leading out from the first cause and, in law, absolve the first cause from all responsibility, it is the statement of a mere arbitrary rule, which in practical application, would lead to results opposed to sound reason. The rule should always be accompanied by the qualification, “that if the intervening act is such as migiit reasonably have been foreseen or anti
We think that where the character of the first wrong is such that an injury will naturally, or probably, result, though it is a result following another cause which has intervened, it is a result that should reasonably have been foreseen or anticipated by the first wrongdoer and he should be held liable. An intervening cause should not be held to excuse the first cause, unless such intervening cause is one so unusual and so improbable as not to be reasonably foreseen or considered by an ordinarily prudent man. Otherwise, one could say, “I will commit this negligent wrong, though I know, or believe, it will probably cause another negligent wrongdoer — another intervening independent agency, to commit an injury.”
In Southern Railway Co. v. Webb, 116 Georgia, 152, a passenger on defendant’s train by a violent and negligent' jerk of the train was thrown through the back door of the car on which he was riding, onto the track, when an engine from another road, which frequently used defendant’s track, came along and killed him; and liability was affirmed. The opinion in the case is full of instructive definition and illustration. Though the fact in that case was that the driver of the second engine was not to blame, we do not see that it should make any difference as to the effect to be ascribed to an intervening cause.
In Seith v. Commonwealth Electric Co., 241 Ill., 252, and Hartnett v. Boston Store, 265 Ill. 331, the defendants under the facts were held not liable, but it was on the ground that the first .negligent act could not reasonably have been anticipated, or foreseen as leading to the intervening, independent agency which was the immediate cause of the injury. In each case the rule is stated in this way: That the injury must be the natural and probable result of the negligent act and be
In Weick v. Lander, 75 Ill. 93, a contractor for a building obstructed a side of a street with material, while on the other side was a pile of lumber, so that it was difficult for teams to pass between. The plaintiff had two teams hauling sand and these were following one another. The plaintiff’s son got on the rear of the front wagon which was suddenly stopped by a collision with an express wagon at the place between the obstructions. The driver of the rear wagon suddenly attempted to stop which had the effect of throwing up the tongue of his wagon so that it ran into the abdomen of the boy, killing him. The contractor was held to be^ liable. The court remarked in the course of the opinion that the contractor “not only knew the obstructions placed in the street were unlawful, but he was aware of the fact that the street where the accident occurred was a public thoroughfare; knowing these facts, he must have known the direct and
In Louisville Tel. Co. v. Gasper, 123 Ky. 128, the company negligently anchored a guy wire in an alley; a driver of a wagon came along at a negligently rapid speed, struck the wire and upset the wagon, onto the plaintiff who was near by. It was held that the fact that the negligent act of the driver intervened did not break the connection of the first cause in placing the guy wire and that the company was liable. The principle in that case was affirmed in that of City of Louisville v. Hart, 143 Ky. 171, 178, where the negligent condition of a street, was such that a boy driving a wagon was thrown onto the street railway track and negligently killed by the driver of the street car. It was held that the intervening negligence of the driver of the car did not break the connection from the first negligence of the city in maintaining the street. And the same principle is asserted in Neidhardt v. City of Minneapolis, 112 Minn., 149.
The same principle is endorsed by 1 Shearman & Redfield on Negligence, sec. 26a and latter part sec. 32 (6 Ed.); Cooley on Torts, 78; 2 Elliott on Roads and Streets (3 Ed.), sec. 795; 29 Cyc. 496-498.
We have thus far deferred reference to cases in the Supreme and Appellate courts of this State for the reason that each of the contending parties claim their view of this case is supported by those cases. While here and there, there may be remarks in these courts which appear to support the idea that where an intervening, independent agency inflicts the injury, it disconnects the first cause and liberates the first offender; yet a reference to the cases, down to the latest utterance on the subject by the Supreme Court, will disclose that that is not the rule by which such cases should be decided; and that our courts are in entire harmony with those above noted from other jurisdictions. Defendants can make no proper claim that Stanley v. Union Depot Ry. Co., 114 Mo. 606, should influence a
But the position of the Supreme Court is unmistakably given in other cases. [Harrison v. Electric Light Co., 195 Mo. 606, 623-629; Buckner v. Horse & Mule Co., 221 Mo. 700, 709-711; Obermeyer v. Longman Chair Co., 229 Mo. 97, 111.] In the second of these cases the following is quoted from the first and reasserted as being the true rule, viz, “That if a defendant is negligent and his negligence combines with that of another, or with any - other independent, intervening cause he is liable, although his negligence was not the sole negligence or the sole proximate cause, and although his negligence without such other independent, intervening cause would not have produced the injury.”
It would be difficult to frame language more applicable to the facts of this case than is found in both these excerpts.
The same principle has been recently twice stated by this court and once by the St. Louis and Springfield Court of Appeals. [Dugdale v. St. Joseph L. H. & Power Co., 189 S. W. 830; Wright v. K. C. Terminal Ry. Co., (not yet reported); Miller v. United Ry. Co., 155 Mo. App. 528; Townsend v. Joplin, 139 Mo. App. 394.]
Though not mentioned, we have not passed by without notice that a builder has a right to place building-material temporarily in the street for use in erecting a building. But such right does not authorize him to deposit, or the city to allow him to deposit, an unreasonable and excessive amount (Christman v. Meierhoffer, 116 Mo. App. 46, 51, 52) and this it is alleged was done in the present instance.
We are of the opinion that a case was stated for plaintiff and that error was committed in ruling otherwise. The 'judgment will be reversed and the cause remanded for trial.