154 S.W.2d 770 | Mo. | 1941
Lead Opinion
James H. Smith filed this suit as the natural guardian of Wanda Louise Smith, his minor daughter, to recover $20,000 in damages from the defendant city for personal injuries sustained by Wanda when she was struck by a motor car driven by defendant Mabrey. At the close of plaintiff's evidence the trial court sustained a demurrer filed by the city, and from the judgment entered plaintiff appealed.
Plaintiff's theory of the city's liability is, that the city failed to maintain a reasonably safe sidewalk on the west side of North Main street, which, it is alleged, forced Wanda to attempt to cross the street to reach a sidewalk on the east side of North Main street, at which time she was struck by the car. Plaintiff argues that the negligence of the city in failing to maintain a safe sidewalk concurred with the negligence of the defendant Mabrey in producing the injury and therefore the city must respond in damages for such injuries. The evidence disclosed that plaintiff, Wanda, was struck at about noon on March 5, 1937, while crossing North Main street, from west to east, near the intersection of Pearl and North Main streets. Plaintiff was seven years old at the time. She and a companion had attended the Washington school located about two blocks west of North Main street, and having been dismissed for the noon hour were on their way home for lunch. They walked east on a sidewalk on the north side of Pearl street and when they reached North Main street they desired to go north to their home. The evidence was that there was no improved sidewalk on the west side of Main street immediately north of Pearl street, which point is referred to in the evidence as being in front of Jones' store. On the east side of that street there was an improved sidewalk. Wanda's injuries were such that she was not able to testify at the trial. Her companion, Martha Fern Kirkpatrick, age seven, testified as follows:
"Q. Now tell us, Martha, why didn't you and Wanda walk up the sidewalk along there by Mr. Jones's store? A. It was muddy . . .
"We came along the sidewalk until we got in front of Mr. Jones' Store and Wanda [771] went on out into the street, Main Street, when the car hit her. We didn't go up the side of the street that Jones' store was on. . . . *647
"Q. Tell the jury why you didn't walk up the side of Main Street that Mr. Jones' store was on? A. Because there wasn't no sidewalk there.
"Q. Was there anything else the matter? A. Yes.
"Q. What else was the matter? A. There was water there, puddles of water.
"Q. There was a sidewalk across Main Street over by the shoe factory? A. Yes, sir.
"Q. Was Wanda trying to get over there to that sidewalk, or do you know? A. Yes, she was."
On cross-examination she testified:
"Wanda and I usually went to school and back together. We usually went in the car but we walked home at noon. I would go down the steps and come along by Mr. Jones' store and then go across to the sidewalk by the shoe factory whether it was muddy or not. I would go on over to the sidewalk. The day Wanda was hurt there were no cars to keep me from going straight across from Jones' store to the shoe factory sidewalk."
The shoe factory referred to in the evidence was located on the east side of North Main street to the north of Pearl street. About fifteen hundred employees of the factory had not been dismissed from their work at the time of the accident. Photographs and the oral evidence of plaintiff disclosed that the sidewalk space in front of Jones' store was uneven and unimproved.
Appellant and respondent briefed the question of the city's duties with reference to maintaining sidewalks, respondent urging that the city had never improved that part of the street in question ordinarily used for sidewalk purposes, and was therefore not liable for defects therein. But let us concede for the sake of argument only that it was the duty of the city to maintain a reasonably safe walk at the point in question and that the walk as it existed at the time was not reasonably safe. Even so conceding the question remains, was the defective condition a proximate cause of plaintiff's injuries? Two or more persons may be guilty of negligent acts in producing an injury so as to render each and all liable. [45 C.J. 920, sec. 485.] But is not the alleged negligence of the city in this case too remote to be considered a contributing cause so as to render the city liable? We think so. Plaintiff in support of her contention cited the following cases: Lindman v. Kansas City,
"A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, *649 even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause."
We have discovered a number of cases from other jurisdictions directly in point which express our idea of the law. The Supreme Court of Iowa in Jones v. Ft. Dodge,
"The sudden appearance of the automobile and the disregard of its driver of the safety of the decedent was clearly an active and efficient cause of the injury. It was the intervention of an independent event, involving human responsibility. Except for this intervening event, the accident could not have happened. It will serve no useful purpose to enter upon a discussion of the question of proximate cause. The question is often a difficult one, and the books are full of discussion thereon. We think, however, that the question as presented herein is not a doubtful one, and that the act of the automobile driver must be deemed the independent and efficient and proximate cause of the accident, and that the defendant city is in no manner responsible therefor."
Storey v. New York,
"It is evident that the mound, of itself, did not produce the injuries, but that the immediate cause was the butcher's cart, which ran over the boy just as he had emerged on the track after passing around the pile of earth. It is insisted, however, that there were two causes concurring — one the earth, which obstructed the line of vision of both the boy and the driver, and the other the cart, which ran over the boy. That there may be more than one proximate cause, and that more than one defendant can be held for negligence resulting in injury, is certain, both in reason and authority . . . So, in the case at bar, if it were claimed that, while passing around the mound of earth, the plaintiff tripped over it, and was thrown upon the track, and there injured by the cart, or if, in a supposable case, the driver of the cart, by striking the mound of earth without fault on his part, had been thrown out, and injured by another passing wagon, then, upon proof that it was negligence on the part of the city to permit the mound of earth to remain in the street, we would have a case where the proximate cause of the injury was the negligence of the city."
For another case in point see Setter v. Maysville,
The judgment is affirmed. Bohling and Barrett, CC., concur.
Addendum
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.