“In a primary negligence case it should be sufficient if a jury is authorized to find that a defendant was negligent specifically in failing to keep a proper lookout, and that such negligence directly caused the plaintiff’s injuries.”
How later courts described this case
- “In a primary negligence case it should be sufficient if a jury is authorized to find that a defendant was negligent specifically in failing to keep a proper lookout, and that such negligence directly caused the plaintiff’s injuries.”
Written by the judges who cited it.
The opinion
On Motion for Rehearing.
PER CURIAM.
In its motion for rehearing Wabash contends that we overlooked, and did not discuss, its assignment that the evidence fails to show that the speed of the train was the proximate cause of the collision.
In the principal opinion we stated that Wabash contended that “the evidence does not show that the speed of the train was excessive or that it was the proximate cause of the collision.” Following the discussion of the facts and the cases we concluded that it was a jury question whether the crossing was dangerous and “whether under the circumstances it was negligence on the part of Wabash to operate the train over the crossing at the speed shown in the evidence, and if so whether that negligence was the proximate cause of the deaths of Aliene Jenkins and Goldie Hutcherson.” Obviously the matter was not overlooked, but it is true that we did not extend an otherwise lengthy opinion by a detailed discussion of the issue of proximate cause.
“Generally, it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading up to the injury. The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequences of the act or omission of the defendant. The negligence of the defendant need not be the sole cause of the injury. It is sufficient that it he one of the efficient causes thereof, without which the injury would not have resulted.” Floyd v. St. *802 Louis Public Service Company, Mo.Sup., 280 S.W.2d 74, 78 ; Dickerson v. St. Louis Public Service Company, Mo.Sup., 286 S.W.2d 820, 824. Pentecost v. St. Louis Merchants’ Bridge Terminal R. Co., 334 Mo. 572 , 66 S.W.2d 533, 536 , cited in the principal opinion, is a case involving excessive speed by a train over an unusually dangerous public crossing, and it was there said: “What is a proximate cause is ordinarily a jury question. [citing cases] 'Causal connection, it is true, must be proved by the evidence, as a fact, and not be left to mere speculation and conjecture. The rule, however, does not require that there must be direct proof of the fact itself. This would often be impossible. It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred.’ ” In a somewhat similar case on the facts, Clay v. Missouri Pac. R. Co., Mo.Sup., 5 S.W.2d 409 , 412, it was stated: “It cannot be said as a matter of law that no case was made upon the allegation of excessive and dangerous speed of the train. * * * But it would appear to> be a question for the jury whether a speed of 45 to 55 miles per hour, through an unincorporated village of two or three hundred population, with the train approaching the crossing where the view is totally obstructed for a number of feet until within 13 feet of the track, constituted negligence. Whether such speed was the proximate cause of the death of Samuel and Lillie Robinson was, we think a question for the jury. The great speed of the train may have contributed materially to the excitement and confusion of the driver, which resulted in the 'stalling' of the automobile on the track.”
The two Missouri cases cited by Wabash do not pertain to excessive speed of a railroad train over an unusually dangerous public crossing, and while we do not disagree with the general rules announced therein, the cases are not controlling because of the difference in the factual situations. We are of the view, and we conclude, that there were sufficient facts established by competent evidence and which were related in the principal opinion, from which a jury could reasonably and properly infer that the negligent speed of the train, which the jury necessarily found it to be under the circumstances, did materially concur with the negligence of the operator of the Klein automobile in causing the collision. Therefore, we adhere to the conclusion stated in the principal opinion that the issue of proximate cause was for the jury. See also-, Treadway v. United Rys. Co. of St. Louis, 300 Mo. 156 , 253 S.W. 1037 ; Beal v. Chicago, B. & Q. R. Co., Mo.Sup., 285 S.W. 482 ; Johnson v. Wabash R. Co., 259 Mo. 534 , 168 S.W. 713 ; Herrell v. St. Louis-San Francisco Ry. Co., 322 Mo. 551 , 18 S.W.2d 481 ; Brown v. Chicago, R. I. & P. Ry. Co., Mo. Sup., 252 S.W. 55 ; Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61 , 85 S.W.2d 126 ; Mullis v. Thompson, 358 Mo. 230 , 213 S.W.2d 941 ; Dirickson v. Thompson, Mo.App., 120 S.W.2d 198 .
In appellant Klein’s motion for rehearing he challenges only the determination that the evidence disclosed that as the train approached the crossing the Klein automobile was in “plain and full view” of the fireman. Upon careful review of this contention we determine it to be without merit.
The respective motions of appellants Wabash and Klein for a rehearing or for transfer to the court en banc are overruled.