[822], This is a suit for damages for personal injuries. The trial resulted in a, verdict' and judgment ‘for plaintiff in the sum of $7,500. On appeal to the St. Louis Court of Appeals the *744 judgment was reversed outright. That opinion appears at 271 S.W: 2d 201. The case was transferred'here by order of this'court under the provisions of § 10, Art. V of the Missouri Constitution, 1945; it is, therefore, here as though upon an original appeal to this court. The City of St. Louis was originally a defendant but a verdict was directed for it, and no appeal was taken by the plaintiff from the judgment [823] entered against the present appellant alone. • The basis of the ruling of the Court of Appeals will be shown and discussed hereinafter.
At about 8:00 A.M., on March 29, 1949, Ellen' Dickerson was a passenger on one of defendant’s buses on her way to work. The bus, going south on Sarah Street, stopped at the Chouteau Avenue intersection, and then turned right or westward into Chouteau where there was a regular bus stop. It was at this stop ■ that plaintiff wished, to alight. The bus driver testified that the traffic on Sarah Street prevented him from making a “wide” turn into Chouteau, but that he stopped with the front of his bus “up at” the-“Bus Stop” sign. One witness said the bus made a normal turn. It is clear that the bus was stopped with its right side some distance from the north curb of Chouteau. This fact is material, so we note here that: plaintiff said the distance was “about ten feet”; a witness who helped measure the distance immediately after the crash which ensued said it was 11% feet; one passenger said about 9 feet, others much less; the .driver said 3 feet at the rear and 4% feet at the front; one witness testified that the left side of the bus was within about one foot of the center of the street. In any event, when the bus stopped and the doors were opened two men were waiting to get off ahead of - plaintiff at the rear door; they had alighted, one had just walked to the curb, and plaintiff was still on the top step when the bus was struck violently from behind by a city street flushing truck, at about its center, and knocked several feet, more or less straight west. Plaintiff was thrown into the street by the impact, alighting on the' lower part of her back with her right arm apparently under her and her feet toward the bus. She was picked up, taken to the curb, and rested there until police officers and an ambulance came. ITer injuries will be described later. The .driver testified that people were also getting off at the front door of the bus. There were no cars parked along the north curb of Chouteau for 250 feet from the corner. The distance' of the rear of the'bus from the corner was variously estimated at from 8 to 60 feet. The time which elapsed between the stopping of the bus and the impact was variously estimated at “about 2 seconds” or longer by the plaintiff, 15-20 seconds by the bus driver, and “around 20 seconds” by a passenger.
The driver of the city truck (going west on Chouteau) testified: that it was. an old model Mack truck; that he slowed at the Sarah intersection and shifted gears, saw the bus making a righthand turn, *745 and proceeded on across the intersection; after he crossed he shifted back from third to fourth gear, necessarily looking down momentarily as he did so; at that time the bus appeared to be moving straight westwardly; as he looked up again, and moving at 10-15. miles per hour, he saw the bus stopped about 10-15 feet ahead of him and-about 10 feet out from the curb, practically in the line in which he' was traveling; that its left wheels were across the south rail of the westbound street car track; that he immediately put his foot on the brake, but had not succeeded in making a “full application” of the brakes by the time of the collision, and 'that he struck the bus about 60 feet, west of Sarah Street, at a speed of about 12-15 miles per hour; that the crash was violent and loud; that the truck was not quite as wide. as the bus; that he did not swerve the .truck nor attempt to use the emergency brake. There was testimony from this witness on cross-examination in the nature of estimates'‘or guesses (without actual tests) that he thought he could stop the truck in 9-10 feet aka speed of 12-15 miles per hour. The truck driver was plaintiff’s witness. This driver and his supervisor measured the distance of the bus from the curb after the collision as 11% feet. There was' evidence that the bus came to a “normal” stop, except for its position. Some of the' other passengers on the bus were shaken up rather violently, and the bus driver testified that several went- to the hospital. Plaintiff offered in evidence an ordinance of the City of St. Louis providing that “no person except in an emergency or to allow another vehicle to cross its path [824] shall stop a vehicle in any street except near the rig'ht-hand curb * * The theory upon which a verdict was directed for the city was that it was, at the time, performing a governmental function. ■
On these facts the Court of Appeals held that the negligence of the driver of the city truck constituted an “intervening efficient and proximate cause” which broke the chain of events, and rendered any negligence of the bus driver too remote to operate as a proximate cause We disagree for the reasons stated herein. 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 construe-’ tion of the evidentiary situation.
Generally, we may say that 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. 65 C. J.S., Negligence, § 111; pp. 685-691; Hogan v. Fleming,
We may say here very briefly that on this evidence a clearly submissible case of negligence was made against defendant-, both under the ordinance -and the common law. Plaintiff was entitled to the most favorable view of the evidence, and one could hardly deny that the stopping of a bus 10 to 11% feet from the curb for discharging passengers on ■ a ’ busy city street was a thing which somé reasonable minds might consider a hazardous thing to do; nor dó we think that-10-11% feet out was “near the curb”-as required by the ordinance; no emergency is claimed. No explanation was made as to why the' driver .could-not have driven on further down Chouteau to pull in to the-curb, with no cars parked for 250 feet. The violation of an ordinance is, of course, negligence per se. Wells v. Henry W. Kuhs Realty Co., Mo.,
Having thus determined that there was, at least, a submissible issue-on defendant’s negligence, we must decide whether the driver, at the time of stopping as-he did, could have reasonably foreseen or anticipated-
some
probable injury to his passengers from so doing. He was, of course, held to the exercise of the highest [825] degree of care.- Many of the cases cited and to be cited herein hold that it' is not ’ necessary to show that he should have anticipated the precise injury which occurred. While there is no Missouri case on these precise facts-the following" cases present somewhat analogous situations in
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which the liability-of the original negligent party was upheld; in other words, where the act of the defendant was held -to be
a
proximate cause,- since he might reasonably have anticipated .that- some.-injury might ensue. Floyd v. St. Louis Public Service Co., Mo.,
Counsel for defendant' cite sundry cases- on the questions of inter-, vening cause and proximate cause; among these-are: DeMoss v. Kansas City Railways Co.,
This necessarily brings us to a consideration of the specific-errors now urged by defendant. First, it contends that it was error to-permit Dr.-Cohen, one of plaintiff’s attending physicians, to testify that plaintiff was “perfectly honest” about, her symptoms and “not feigning anything.” As to the latter question, there was no objection at all, and as to the first, the objection (if sufficient in form) came after the answer and there was no motion to strike. Considered more
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broadly, however, we find that the questions followed -questions by defendant’s counsel to this witness asking if “some people are,able to feign that sometimes” (i.e. pain, wincing, etc.), and to Dr. Wennerman, another attending physician, asking if Í ‘sometimes those things can be feigned. ’ ’ Both of those questions were answered generally in the affirmative. Certainly plaintiff’s counsel was entitled to interrogate Dr. Cohen on re-direct.as to whether, in his opinion, the plaintiff was in fact “feigning”; the question as to whether he believed she was “perfectly honest,” considered in its context, could only have reference to the likelihood of “feigning,” and we think it.was so understood. The question could perhaps have been better worded, but, under the circumstances, this was not reversible error. And see Eickmann v. St. Louis Public Service Co.,
The next assignment is of error in excluding the report of a supposed physical examination of plaintiff. According to a statement of defendant’s trial counsel, he had subpoenaed “the entire employment and medical record” of plaintiff from her last employer. The papers were produced -by a witness- whose capacity was not shown; they were-not offered in evidence as-a whole, but on specific inquiries the witness-read the dates of employment and .termination, the reason for leaving, notation of a lay-off, comments on plaintiff’s skill, attention, etc., all without objection-.' The witness - stated that the papers or file were the complete employment record of plaintiff, and (immediately following the above) that ‘.‘the record” was one kept in the ordinary course of business. This witness was asked no questions concerning a physical examination of plaintiff. Counsel- then offered to read a supposed report of a physical examination of plaintiff which he stated was in the employment file and signed by one “Martin F. Kouri” (wholly unidentified) and which, among other things, stated under “Remarks”: “Low back injury, 3-29-49. Recovery about complete.” To this offer plaintiff’s counsel objected on the [827] ground that the tendered evidence was hearsay and incompetent for any purpose. The -court sustained the objection. Thereafter counsel for plaintiff cross-examined the witness concerning plaintiff’s pay-rate and-salary and her failure to receive any salary for one week. These questions in no way involved the supposed physical examination.
Defendant insists that because there was no objection to the records as a whole,-and because of the cross-examination, this" report should have been received in evidence, citing Dorn v. St. Louis Public Service Co., Mo. App.,
-Defendant insists that Instructions 1 and 2 given on behalf of plaintiff were prejudicially erroneous; the first ,of these set out the substance of the ordinance requiring vehicles to be stopped “near the right-hand curb,” and further submitted: that if the.jury found that the -bus -was stopped approximately 10 feet from the curb for the purpose of -unloading passengers, such constituted negligence; and that if the jury further found (here hypothesizing briefly the fact of' the collision) that defendant’s negligence, if any, “directly-contributed and concurred” with the negligence of-the driver of the truck, if any, in-causing ^plaintiff’s injuries, 'then plaintiff should recover. The principal complaints-of this instruction are 'that it assumes that 10 feet away is not “near the curb” and'that such constitutes negligence, that it ignores the fact'that “.near the curb” means only as near as practicable, and that it does not properly require the jury-to find that-a violation of the ordihan.ee was the proximate cause of plaintiff’s injuries. ■ Counsel also insist that the violation of the ordinance could not have been the proximate cause because of the efficient, intervening cause-shown by plaintiff’s own evidence. We have already ruled ón the substance of this latter contention. Under all the evidence here we think that there was really no substantial doubt that 10 -feet was not Pneár the curb”; the only real question was whether the bus was stopped 10 or 11 feet from the curb or approximately 2 to 4 feet’ from the 'curb; it is. unnecessary to decide here whether in other situations the phrase “near the curb” might mean as near “as practicable,” for, regardless of any supposed difficulty in making the turn, this driver had-250-feet of clear curb line-in which to get “near the curb”';
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moreover, he testified that he did in fact stop the rear of the bus-3 feet from the curb and the front 4% feet from the curb; this would seem to [828] show that, on his own theory, 10 feet was not as near -Pas practicable.” We hold that stopping the bus 10 feet or more from the curb under these circumstances, which spot was directly in the main line of traffic, was a violation of the ordinance, and that the jury might properly be so instructed. See Jones v. Central States Oil Co.,
Instruction No. 2 submitted common law negligence in stopping the bus approximately 10 feet from the curb, if the jury so found, upon the theory-that the jury might find that such was not a.reasonably- safe place to discharge passengers, and that such act might be thus -found to constitute negligence; it hypothesized the collision and submitted the question of causation substantially as in Instruction No.-1. The point now made that the submission was defective on the question of causation has already been covered. The remaining objections are that the instruction failed to hypothesize the-negligence of the driver of the truck, as shown by plaintiff’s own evidence,-and that generally the instruction was a “roving commission.” Cases are cited to the effect- that complicated, factual situations shown in evidence may not be ignored (Ferdente v. St. Louis Public. Service Co., Mo.,
[829] The last contention of defendant is that the verdict was excessive. Its amount was $7,500. The age of plaintiff is not stated,but she was a British “war-bride” and apparently was comparatively young. Her prior health was relatively normal. The evidence is uncontroverted that, in addition to various bruises, minor injuries, ■headaches and shock, she sustained: a strain of the lower back, an injury to the coccyx which at the time of trial was thought to be permanent, at least without an operation; some vaginal bleeding, pain in both sides for about two years (apparently connected with the female organs), and pain and weakness in her right arm for a long period with a remaining weakness in it to the time of trial; she had no fractures; her principal complaint at the time of trial was a continuing “dull, throbbing pain” in the region of the coccyx (or end of the spine) which bothers her “every day,” and which “hasn’t gotten any better. ’ ’ The probable result of an operation for this was shown to be somewhat' conjectural. Plaintiff was attended by three physicians, two of whom testified. She .had been examined by physicians for defendant but none of them testified. She actually lost only three weeks’ work, but testified that her work thereafter was accompanied by much discomfort and pain. We have examined the-cases cited on this point by defendant, but they are of little assistance, since they necessarily involve materially different .facts; in three of the six cases. cited the verdict of the jury was • not reduced and -apparently those 'eases are cited as showing what other juries awarded. That cannot-be persuasive here. We cannot say that, on these facts,
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the verdict is so excessive .as to require' a remittitur; we cannot say that' any “injustice * * * is manifest” (Arl v. St. Louis Public Service Co., Mo. App.,
The judgment of the trial court will be affirmed. It is so ordered. The opinion of the St. Louis Court of Appeals shown at