Saxon v. St. Louis Transfer Co.
123 S.W. 104
Mo. Ct. App.
1909
Check Treatment
REYNOLDS, P. J.

(after stating the facts).

A vеry able argument and full brief has been filed by the learned counsel for appellant, many authorities being cited in support of their contention against the correctness of the action of the trial court in the exclusion of testimony offered by plaintiff and to the giving of the instruction directing a nonsuit. Most of the authorities, however, that counsel cite are cases arising over Avhat are recognized as nuisances. The petition in this case is bottomed, however, upon the theory of negligence in placing the obstruction in the passageway in a careless manner and allOAving it to remain there. In a sense *704the act charged may he said to come within the class of acts, the doing or maintenance of which constitute a nuisance. But this is not a case of nuisance per se, nor is it so pleaded. Hence we do not think ‍‌​​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‍that the cases which deal with nuisances per se are applicable to this case. In our view of it, it is a case, the determination of which must turn upon the application of that part of the law of negligence relating to the ascertainment оf the proximate cause, a subject upon which a vast amount of learning has been expended and on which almost innumerable decisions have been rendered. We do not conceive that it would serve any good purpose to go into a critical еxamination of these authorities or a discussion of this very nice question. We agree with the very learned and possibly most voluminous writer on the subject of negligence, the late Judge Seymour D. Thompson, where he says (1 Thompson on Negligence [2 Ed.], sec. 47) : “There can be no fixed and immediate rule upon the subject, (of proximate or remote cause) that can be applied to all cases. Much must, therefore, as is often said, depend upon the circumstances of each particular case.” The real question in this сase is whether the accident which happened and the injuries which the plaintiff undoubtedly received were occasioned by reason of the placing of the box or crate at this landing instead of on the upper landing, upon which the apartment of the Krаmers was located, and by reason of placing it on the landing in a careless and unsafe position, and by reason of permitting the box to remain there. The case then resolves itself into the determination of the question as to how far this defendant is responsible tо this plaintiff for any or all of these acts.

As to the first proposition, that the defendant was remiss in its duty as a freighter or wagoner, in failing to deliver tbe box at the place called for in the waybill or dray ticket, or at the place directed by Kramer in-*705Ms letter to the defendant, in connection with which the offer Avas made to prove the customary place of delivery, it is a sufficient and conclusive answer to say, that the only person who could complain of this breach of duty is Kramer. So far as concerns this aspect of the case, there was no contractual relationship, express or implied, ‍‌​​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‍between* the plaintiff and the defendant, which obligated the defendant to make delivery at any particular place. Without undertaking to go into a full discussion of this particular point, it is sufficient to refer, for what we understand the law to be on this, to the decision in the case of Young v. Waters-Pierce Oil Co., 185 Mo. 634. This case is cited by the learned counsel for the appellant in support of their position as to the liability of this defendant, but we do not think that- it sustains their contention under the facts in this case. On the contrary, on this particular proposition of contractual relation, we think the Young Case is against their contention and warrants us in concluding that plaintiff has no connection with the contract betAveen Kramer and thе defendant as to the place of delivery. So that any contract or custom as to that is irrelevant.

The second proposition as to the responsibility of defendant for placing the obstruction in the passageway is dependent upon the other proposition as to whether the immediate, the proximate, cause of the accident, was the placing of the crate there, or in allowing it to remain there after is was placed. A very clear statement of the law covering this particular proposition of continuing liability, and one which we accept, is given by Judge Baker, speaking for the United States Circuit Court of Appeals of the Seventh Circuit, in the case of Crane Elevator Co. v. Lippert, 11 C. C. A. 521, S. C. 63 Fed. 942. In this case, the learned judge says: “Neither ‍‌​​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‍the OAvner of the building, nor another by Ms *706authority, had the right to place an obstruction in the hall which would endanger the safety of those having lawful occasion to pass through it while in the exercise of due care. If the plaintiff in error placed the obstruction complained of in the hall under a grant of authority from the owner of the building, its duties and responsibilities were co-extensive with those of its grantor. If it placed the obstructions in the corridor without the consent of the owner of the building, its responsibility to the defendant in error for his injury would assuredly be no less than if it had acquired such consent.” The defendant in this case not only placed the obstruction in the hallway, but was owner of and in control of it dovra to the date of the accident. This case has been cited and quoted approvingly by our Supreme Court in the case of Young v. Oil Co., supra, at page 663. Hence, if the accident complained of and the resultant injuries occurred through the placing of this obstruction in the passageway, whether securely or insecurely, but in such a way that, as placed, it was the immediate cause of the injury to this plaintiff, and if defendant maintained it there down to the time of the accident, then whether the accident was caused by the first placing or by the subsequent maintenance, the defendant is liable. This brings us then to the decisive point, that is, granting that the act of placing it there was in a carеless and negligent manner, whether that act was the immediate cause of the accident or whether, between that careless and improper placing of the crate and the happening of the accident, an intervening cause, which can in law be sаid to be the immediate and proximate cause, the causa causans, had arisen. That is, was it the act of placing or the act of maintaining that directly caused the accident. Referring again to Thompson on Negligence, section 47, and following, we find a very exhaustive discussion оf this matter of intervening cause. The doctrine stated is that *707the connection between the act claimed as causal and the accident “is usually enfeebled, and the influence of the injurious act controlled, where the wrongful act of a third person intervenes, and where any new agent, introduced by accident or design, becomes more powerful in producing the consequences than the first injurious act.” Is the defendant responsible, in law and under the facts, '•for leaving this crate in the situation in which it was placed by the defendant’s agent? Under the facts in evidence in this case, the answer seems clear. No matter whether Mrs. Kramer was terrorized into signing the receipt by the acts and appearance of the teamster when he refused to carry the crate up to the upper lаnding and insisted upon her receiving and receipting for it where he had placed it, or whether she received it under protest, it is evident that, both in fact and in law, defendant had completed the delivery of this crate to Kramer, the consignee, for there is no pretense that his wife ‍‌​​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‍was not authorized to receive and receipt for him. With that delivery the responsibility and the control of the defendant over the crate ceased. While it may be true that if it had not been placed in an insecure position, it might have remained therе indefinitely without anybody who passed backward and forward between it and the wall being hurt, we have no right to assume, as against this defendant, that such would be the case. Against this assumption is the right of the defendant to assume that when it delivered the goods, the consignee or the pеrson to whom they were delivered would remove them within a reasonable time, even if it was any concern of the defendant that he would do so. That the delivery was complete and the responsibility of the defendant for the custody of the goods thereafter had tеrminated, we think very clear from the evidence in this case. We say this without in any way determining whether, between Kramer and the defendant, this was the proper or customary place *708of delivery. Kramer, the consignee, of more accurately, his wife, as his agent, received the crate at that place. Whether that was a wrong delivery or not is of no concern to this plaintiff. What does concern the plaintiff is what was the direct cause of the accident.

In the case of Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469, l. c. 475, Mr. Justice Strong says: “We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to misfeasance or nonfeasance. They are not when there is a sufficient ■ and independent cause operating between the wrong and the injury. In such а case the resort of the sufferer must be to the originator of the intermediate cause.” It is true that in that case, the Supreme Court of the United States held that whether or not the intermediate cause was the immediate cause, was a question of fact to be submittеd to the jury on proper instructions. “Where, however,” says Judge Thompson, p. 158, sec. 162 (1 Thompson on Negligence [2 Ed.]), “the presence of an intervening responsible agency is an obvious inference from undisputed facts, it is not error to withhold the case from the jury. . . . When, therefore, it is impossible to determine from the evidence whether the injury proceeded from a cause for which the defendant was responsible, or from a cause for which the defendant was not responsible, the case must be withdrawn from the jury. This is nothing more than an incidеnt of the general proposition prevailing in jury trials, that whether or not the evidence tends to prove a given proposition of fact is always a preliminary question for the judge. Accordingly, it has been laid down that whether or not the evidence tends to provе that the negligence of the defendant was the direct cause of the injury complained of, is a question of law for the court.” In the case at bar, and applying these principles to its determination, the trial court determined as a matter of law that the *709delivery by defendant to Kramer was such a delivery as divested defendant of all further control of the crate or box. Admittting that it was a careless delivery, in the sense that it was not placed securely upon the landing, it cannot be said that it was within the contemplation or could have been within the contemplation of the defendant, that the crate would be left there in that place and situation indefinitely, and that if so left, injury would result therefrom. In the case at bar, we might assume that if the crate had not been carelessly deposited on the landing and that between the deposit and the accident it had not been shifted, of which fact, however, we have no proof, that the accident would not have occurred; or we might assume that even if deposited insecurely, ‍‌​​​‌‌​‌‌‌​​​​‌​​​​​​​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‍if it had not been left- there for such а length of time, the accident would not have occurred. Plaintiff herself recognizes this, for her petition charges that defendant placed the crate in the hallway and suffered it to remain there and that both acts were the negligent acts which caused the aсcident. It is clear that defendant had nothing to do with the crate remaining there and was not responsible for that. Having to rest on supposition as to which of the two acts was the proximate- cause of the accident, for one of which defendant may be resрonsible and for the other of which it was not responsible, we have the very simple and common situation, namely, plaintiff has not made out her case, for a jury must act, not on doubtful presumption but on established facts.

On consideration of the facts in this case and of the law we think'applicable to it, we agree with the learned trial judge that the accident happening by reason of the crate being left where placed for the length of time it was so left, and defendant not being responsible for this leaving, cannot be held. We find nо error in the ruling of the lower court in the admission and exclusion of testimony or in its direction to the jury which *710resulted in plaintiff taking a nonsuit. Tbe action of tbe circuit court in overruling tbe motion to set aside that nonsuit and to grant a new trial is affirmed.

Nortoni, J., dissents; Goode, J., concurs, for tbe reason that considering tbe beigbt of tbe box (three to three and one-half feet) and tbe space of ten to twelve inches left between it and tbe wall, a man of common prudence would not anticipate danger of injury to any one in attempting to pass between tbe box and tbe wall. Hence there was no negligence on tbe part of defendant constituting proximate cause of plaintiff’s injury.