Lead Opinion
Thе action is in damages for personal injuries. From a judgment for $15,000 *531 in favor of the plaintiff below, defendant has appealed. By reason of a dissent to an opinion written in Di vision 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. DeMоss, 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 east 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 crаshed 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 *532 forward until it struck the street car. • The automobile had no chains on its wheels, although it was equipped ydth 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 sthrt forward and the. brakes of the auto-; mobile were applied. Plaintiff kept her eye on the-streetcar- 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,' ánd 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 inferqpce is clear that if the motоrman had-.locked 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 fore^ going is the substance thereof. Plaintiff also attempted to. plead the humanitarian doctrine, but such ground of negligence wаs 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 .starts *533 ing 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 hеr 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 ease 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 ski Iding of the automobile — was the proximatе 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 speed4 óf 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 *534 a speed that it could reasonably be expected to be stopped or turned before reaching the street car. He bad nо means of knowing that ordinary precautions to put on chains bad 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 thаt “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,
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,
Onr conclusion is that plaintiff failed to make out a case for the jury and the judgment is therefore reversed.
Dissenting Opinion
(dissenting). — I dissent from the reasoning and conclusions of the majority opinion; and I have deemed it proper to set forth a statement of the facts as I read them in the record and my conclusions of law applicable thereto, that my reasons for holding that this judgment should be affirmed may be clearly understood.
Plaintiff is a married woman, who at the time of the trial was about thirty-eight years of age. In May, 1918, she was en route to her home in Liberty, Missouri, in an automobile accompanied by her husband and two small children. The husband was at the wheel, and she and the children were on the back seat. The accident in which she received her injuries occurred at the intersection of Fifteenth Street and Prospect Avenue in Kansas City. A car on defendant’s track had stopped about even with the Fifteenth Street curb line, and was standing there when the automobile approached. When the automobile ,was about thirty-five or forty feet from the car, the latter was suddenly started by the motorman and the collision occurred. This was either due to the sudden starting of the car, which rendered it impossible to stop the automobile on account of the slippery condition of the street before it was struck by the car, or to the fact that the motorman gave no starting signal and instead of directing the car along Prospect Avenue caused it to turn on a curved track so as to render the crossing of same by the automobile impossible without the collision. From the testimony of the plaintiff, the attitude of the motor *536 man was such as to indicate that he did not look in the direction from which the automobile was coming and was consequently oblivious of its approach when he started the car. At the place where the collision occurred there were double tracks, north and south, on Prospect Avenue and on Fifte'enth Street, and a curved track into Fifteenth Street off of Prospect Avenue. If the car, after it was suddenly started, had continued north on Prospect Avenue instead оf running around on the curve, which threw it closer to the automobile, the accident, according to the plaintiff’s testimony, would have been averted. The sudden starting of the car around the curve, the lack of a warning signal and that the motorman did not ,look in the direction from whence the automobile was coming are conceded. Plaintiff’s evidence is that if the motorman had looked in the direction from whence the automobile was coming, he could have seen it and thus prevented the accident.
When struck, the automobile was moving<at the rate of eight or ten miles per hour. The particulars of the accident are that when the street car was about half way around the curve, the automobile ran into thе side and just .a little beyond the middle of the car.. The impact bent or crushed the fenders and radiator of the automobile, the front wheels of which ran under the car. As a result of the collision, the plaintiff was thrown over the back of the front seat of the automobile, a deep gash was cut in one of her legs and other injuries were inflicted. At the time, she was about three months pregnant. After a few days suffering, she had a miscarriage. For some time after the accident, she had to use crutches. She suffered from the injury to her leg and had.frequent ¡cramps in her toes, and her urinary organs gave her trouble from what the doctors said was spasms of the bladder. Up to the'time of the trial, she was in a highly nervous condition, did not sleep restfully and has not, as ^heretofore, been, able to do her ordinary housework.
*537
The comprehensive character of plaintiff’s injuries, as alleged, is such that the necessity for the amendment under a reasonable construction of the rules of pleading is questionable. The general allegations as to the plaintiff’s injuries are sufficient to permit the introduction of testimony concerning the impaired functions of her bladder. Pathologically considered proof of the impáired .condition of her kidneys would seem to authorize a showing as to the condition of the bladder .as a consequencе or
*538
a resultant of such impairment. It is not necessary, however, to so rule in this case. The general allegations being, in our opinion, of such a scope as to admit of the .testimony complained of without the amendment. To anyone having a fair understanding of the English language, no ground of surprise such as will authorize a continuance within the meaning of the statute (Sec. 1391, R. S. 1919) can be based upon the allowance of the amendment. Apprised as the defendant must have been by the petition, before the amendment, that proof would be offered of the impaired condition of the pelvic organs, due to the injuries, the inserting of the words “and bladder” in the pleading will not serve even as an attenuated basis for surprise. If the defendant came armed, as it is presumed to have come, to meet the general allegations of injuries, it must necessarily have been equally prepared to meet the proof of injuries necessarily included within those general allegations. We have always held that the matter of the granting of continuances rests in the discretion of the trial court, and, unless it is evident that such discretion has been abused, we will not interfere. There is nothing in this case to indicate an abuse of that discretion, and defendant’s contention must be overruled. [Smith v. Railroad,
There was no issue here of contributory negligence. *539 The answer was a general denial, and if there was a showing of any negligence on the part of the defendant it was .liable. To escape this alternative, it became necessary for the defendant to show' that the accident was the result of the negligence of the plaintiff’s husband, who was driving the automobile. Failing in this, the conclusion that must flow from all of the facts is that the motormаn was guilty of negligence, otherwise the accident would not have happened. Can this conclusion be sustained by the relevant testimony? The car had stopped on a track which inclined slightly towards the intersection of the streets, which were slippery from recent rains. Without a. starting signal, shown to have been customary, the car was suddenly started forward, not straight along Prospect Avenue, but around a curve at the intersection .of Prospect Avenue and Fifteenth Street, which brought it nearer to where the automobile would have to cross the tracks. In starting the car, the motorman did not look in the direction of the much-traveled street on which the automobile was approaсhing. That it was his duty to look, and if he had looked, he would have seen the automobile and realized from its nearness to the crossing and the condition of the streets that it would be difficult to stop it within the intervening distance between it and the tracks. Thus informed, it is most reasonable to conclude that he would not have started the car unless, which we do not conjecture much less presume, he was ruthlessly indifferent to the result. Under these circumstances, there was ample evidence to refer the question of the defendant’s liability to the jury. There is nothing in the conduct of the driver of the automobile to lessen the force of this conclusion. He was approaching the track at a speed of eight or ten miles per hour; he saw the car standing at the edge of the curb line of the street; he sounded his horn as a warning of his approach and his evident purpose to cross the tracks; and he was authorized in concluding that the car would not be started until he had passed over the crossing. Contrary, however, to what *540 any reasonable mind would have concluded under like circumstances, the car was suddenly started, and to stop the automobile on account of its nearness to the tracks and the condition of the streets in time to avert the collision was impossible. There is in this evidence nothing .to show negligence on the part, of the driver of the automobile, but the facts are ample to. authorize the reference of the question of defendant’s negligence to the triers of the facts. 'We therefore .overrule this' contention. ,■
Ellisozst, J., in Hensley v. Railroad, 214 S. W. (Mo. App.) l. c. 289, held that an inquiry made of an expert medical man under strikingly similar circumstances to *541 those at bar was not improper. An excerpt from that opinion is pertinent:
“Plaintiff introduced, as an expert, one of the physicians who .attended her. After hypothesizing statements of facts; he was asked this question: ‘I will ask you to state if in your opinion as a physician, under these facts and circumstances as I have related [them], whether the blow she received was the probable cause of this miscarriage?’ He answered that.‘it was the probable cause:’ The question is supported by Wood v. Railway Co.,181 Mo. 433 , 448-455, and that case was doubtless the ground of the question and the ruling.
“It will-be noticed that .the witness was not аsked whether the blow was the cause of the miscarriage, nor did he answer that it was the- cause. He answered that it probably was-the cause. Now the word ‘[probably’ signifies an opinion on a doubtful question. It is not dogmatic. It goes no further in this instance than to say that it ‘may,’ it ‘might’, it ‘is likely.-’ It does not substitute the witness for the jury. It is not the expression of a. fact, but Only an opinion of likelihood. ’-The question and answer; does not fall within the rule stated, in Roscoe v. Street Ry. Co.,
The Hensley Case defines with technical accuracy what constitutes the expression of an opinion by an expert witness thus distinguishing it from .the statement of a'matter of fact, which would, as is stated therein, have substituted the witness for the jury. ' It is only the statement of facts of this character that will render an answer to such an inquiry as is here made incompetent.
If ’an-analysis of the witness’s answer be deemed necessary to determine its character, there is no dearth of judicial rulings in support of its classification as an expression of. opinion rather than the statement of a conclusion or of an ultimate fact. In Topeka Ry. Co. v. Higgs, 38. Kan. 375, the word “possible” is held to mean “liable to happen, or to- comíe to pass; capable of existing or of being conceived or thought out; capable of *542 being done; not contrary to the nature of things.” In Reese v. Loose-Wiles Co., 224 S. W. (Mo. App.) 63, the word “possible ” in a doctor’s answer was held tо be quite similar in meaning to the word might, which had been used in the question. In Owens v. Kelly, 6 D. C. 191, the word “might” was held to be a preterit of the word “may,” an equivalent to the words “had power” or “was possible.” We have examined with some degree of care the cases cited by the defendant in support of its contention that the testimony under consideration was inadmissible. These cases will be found upon review to have reference to testimony in which the witnesses were permitted to determine some ultimate fact- or to refer to future or permanent conditions. Such was not the case at bar.
The defendant’s contention was without merit, and We so rule.
Trial courts are vested with reasonable discretion in the conduct of proceedings before them, especially in the trial of cases. In the absence therefore of anything more substantial than this application, we will not interfere with the action of the trial court in this behalf'.
Y. Instruction numbered one, given at the request of the plaintiff, is assigned as error. This instruction is as follows:
*543Instruction! 'Warning. *542 “The court instructs you that if yоu believe and find from the evidence that on or about the 21st day of May, 1918, the plaintiff was riding in an automobile *543 with her husband, east-hound on Fifteenth Street, in Kansas City, Missouri, and that as said automobile was upon the intersection of Fifteenth Street and Prospect Street in said city, it came into collision with a street car being operated by the defendant; and if you further believe and find from the evidence that at said time and place the automobile in which the plaintiff was riding approached said intersection for the purpose of passing over the same, and that while said automobile was so approaching said intersection one of the defendant’s street cars, north-bound on Prosрect, was stopped and standing still on Prospect Street, south of Fifteenth Street, and at said intersection; and if you further believe and find from the evidence that the street was wet and slippery; and if you further believe and find from the evidence that a sudden starting forward of said car at said time and place, without warning, was reasonably calculated to place the plaintiff in peril and danger of a collision between said car and said automobile; and if you further believe and find from the evidence that defendant’s motorman in charge of said street car knew, or by the exercise of ordinary care could have known, of the foregoing facts and conditions, if you find such to be the facts and conditions; and if you further believe and find from the evidence that notwithstanding such facts and conditions, and knowledge or means of knowledge of such facts and conditions on the part of said motorman, if you find such to be true, he nevertheless negligently, as negligence is elsewhere defined in these instructions, started said car forward suddenly and without any warning or notice that said car as about to be or was being so started forward, if you find it was; and if you further believe and find from the evidence that the starting of said car forward suddenly and without warning or notice thereof at said time and place, if such be the facts, was negligence as negligence is elsewhere defined; and if you further believe and find from the evidence that as a di *544 reet result of said car being so suddenly started forward without warning or notice, if you find from the evidence such to be the facts, said automobile was caused to come into collision with said street car; and if you further believe and find from the evidence that as a direct result thereof the plaintiff was thrown and injured; then your verdict will be for the plaintiff, unless you.further find from the .evidence that at said time and place the plaintiff failed to exercise such care for her own safety as ordinarily careful and prudent persons usually exercise under the same or similar circumstances shown by the evidence in this case, and that such failure on her part, if any therе was, contributed to her injuries, in which latter event you would find for the defendant.”
It will be seen that this instruction, submits conjunc-tively all of the elements of negligence authorized by the evidence. The defendant’s contention is that a failure'to give a starting signal should not have’been "included as one of these elements.
The word “negligence,” as generally interpreted, embraces ánd expresses a failure to exercise ordinary care or such as an ordinarily prudent person usually exercises under like or similar circumstances: It was properly so defined by instruction numbered' two, given at the instance of the plaintiff. [Jackson v. So. Bell Tel. Co.,
The requirement as to the exercise of ordinary cаre is general in its application; it extends to everyone who, in the exercise of any activity or the control of any instrumentality, does any act which results in injury to another. As this court said in May v. Railroad, 225 S. W. (Mo.) 660: “Everybody regardless of any contract he may be under to render a particular service, has the duty imposed on him by law to be ordinarily careful, the circumstances considered, not to hurt other persons, and is responsible"to anyone who is-hiarmed by a breach of that duty.”
*545 In the observance of this rule, it was required of the motorman to use every reasonable precaution to prevent this accident; one of these was to give timely warning of his purpose to start the cаr; which warning, it is conceded, it was customary to give. That this custom had its origin and owed its observance to a realization on the part of the defendant that it was one of the precautions necessary to prevent an accident of the character here under review, we need not stop to discuss, other than to say that customs originate either out of convenience or from necessity and owe their continued existence more often to the promotion or protection of the selfish interests of those observing them than otherwise.
Under the facts at bar, a failure to give timely warning of starting the car was of the utmost importance. .[Harrington v. Dunham,
*546 However, asv stated, the failure to warn was submitted with the other elements of negligence in the conjunctive. The acts of negligence, being thus charged, the jury, as a condition precеdent to a verdict in plaintiff’s favor, was required to find that the defendant was guilty of same. If, therefore, these negligent acts be construed conjunctively, the instruction was more favorable to the defendant than otherwise, and it has no ground of complaint. [Moyer v. Railroad, 198 S. W. (Mo.) 839.] But, if the instruction be construed disjunctively, the defendant still has no ground of complaint, for the reason that if a petition, to which an instruction conforms, states several acts of negligence, if not contradictory and but one be proved, it will suffice to sustain the verdict. [Moyer v. Railroad, supra; Rigg v. Railroad, 212 S. W. (Mo.) 878; Brasel v. Letts Box Co., 220 S. W. (Mo. App.) l. c. 988.]
It is elementary that negligence is not actionable unless it is shown to have produсed an injury. It is, therefore, always necessary to prove that the negligence complained of is the proximate cause of the resultant injury. An instruction, therefore, must require such a finding to sustain a recovery. Here the jury was only required to find such facts from which a necessary inference would follow that the negligence found was the proximate cause of the injury. Being clearly within this limitation, the instruction is not subject to tenable objections.
This instruction did not properly define the motorman’s duty, as we have shown in the discussion and approval of instruction numbered one, given at the instance of the plaintiff, and, hence, the action of the court in refusing to give it is not error.
*547 (c) It is also urged that the following instruction asked by tbe defendant and refused should have been given:
“Tbe court instructs the jury that if you believe and find from the evidence that the street car in question had started into Fifteenth Street ahead of the automobile in which plaintiff was riding, if so, then the street car had the right of way, and it was the duty of the driver of the automobile in which plaintiff was riding to stop said auto and let said street car pass.”
This instruction is not based on the facts and was properly refused on that ground. The plea of the right of way of the car, if it had any foundation under any circumstances, is dissipated in the face of the fact that it was not in motion as the automobile approached, but was at a standstill and so continued until the automobile was within thirty-five or forty feet of 'the crossing. Under such circumstances it was the duty of the motorman, first, to have given a starting signal, or, better still, to have held the car until the track had been crossed by the automobile. The first precaution, as we have shown, would have reduced the possibility of the collision; the second would have rendered it impossible.
Utterly at a variance with all the circumstances surrounding this action and incorrectly stating the law, the instruction was. properly refused.
(d) Like reasons may appropriately be urged to sustain the action of the -trial court in refusing to give defendant ’s instruction numbered eleven, with which we will not burden this opinion by inserting the same herein.
VI. Some serious misgivings arise as to whether the amount- of the damage awarded was not excessive.
*548