135 Mo. App. 119 | Mo. Ct. App. | 1909
The plaintiff sued for damages for personal injuries received it is alleged by reason of the negligence of a driver of defendant, Thomson Transfer Company. Plaintiff recovered judgment against defendant in the sum of $500.
The driver had stopped in Missouri avenue, in Kansas City, Missouri, to allow his team to eat its noon-day feed. He had removed the bits from the horses’ mouths and, plaintiff’s evidence was, had removed the bridles and they hung upon the hames. The wagon was loaded with drums of condensed liquid carbonic acid gas. The safety valve, a contrivance to enable gas to escape and avert an explosion, was blown off of one of the drums, making a loud noise. The team became frightened and ran away. The driver and another ran to the heads of the horses and endeavored to stop them, but to no purpose. The horses ran down Missouri avenue, to Main street, along which plaintiff
Defendant insists that tbe explosion, and not the negligence of defendant’s driver in leaving tbe team unsecured, was tbe proximate cause of tbe plaintiff’s injury and for support of bis theory relies upon tbe rulings in Saxton v. Railway, 98 Mo. App. 494, and Insurance Co. v. Boon, 95 U. S. 117. We think they overthrow its theory. There was an intervening cause between tbe explosion and tbe injury, viz., tbe negligence of tbe driver, without tbe occurrence of which tbe team would not have escaped and run away. Under tbe rule in Saxton v. Railway, supra, the proximate cause is tbe one <£which in tbe natural and continuing sequence, unbroken by an intervening cause, produces tbe injury and without which tbe result would not have happened.”
Defendant relies mainly on tbe ground that plaintiff was guilty of contributory negligence. We think that is equally untenable. Defendant states tbe matter thus: “If plaintiff bad left bis buggy when bis three children did, be would not have been injured.” If be had not driven bis borse south after tbe first two teams bad passed, but bad remained still, be would not have been injured; or, if be bad turned and driven north, be would not have been injured. Admitting all
The' point is made that plaintiff did not prove that the injury was inflicted within the corporate limits of Kansas City. That was not important as the locality was sufficiently described. But there was evidence that Missouri avenue was within the city limits and, as the injury occurred at its intersection with Main street, we may safely infer that Main street was also in the city limits.
Defendant’s objections to instructions 1, 2 and 4, given for plaintiff are not well taken.
Defendant complains of the action of the court in refusing instruction 5. The instruction is well enough and, if there had been any evidence of contributory negligence, it ought perhaps to have been given. However, under the evidence and construing it the most unfavorably to the plaintiff, as. a matter of law he was not guilty of the slightest negligence.