Metzger v. Schermesser

687 S.W.2d 671, 73 A.L.R. 4th 729, 1985 Mo. App. LEXIS 3091
CourtMissouri Court of Appeals
DecidedMarch 12, 1985
Docket48219
StatusPublished
Cited by14 cases

This text of 687 S.W.2d 671 (Metzger v. Schermesser) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metzger v. Schermesser, 687 S.W.2d 671, 73 A.L.R. 4th 729, 1985 Mo. App. LEXIS 3091 (Mo. Ct. App. 1985).

Opinion

GAERTNER, Judge.

Plaintiff, Thomas E. Metzger brought this action against defendants Pamela Schermesser, Daniel Conway and David Shiro for personal injuries Metzger suffered in an automobile collision. At the close of plaintiff’s evidence the trial court sustained Conway and Shiro’s motions for directed verdict. Metzger then settled his dispute with defendant Schermesser and appeals from the action of the trial court in sustaining the motions for directed verdict. We reverse and remand.

*672 In reviewing a trial court’s grant of a motion for directed verdict after the close of a plaintiffs evidence, we “consider the evidence in the light most favorable to the plaintiff with all reasonable inferences to be drawn therefrom.” Garrett v. Joseph Schlitz Brewing Company, 631 S.W.2d 652, 654 (Mo.App.1982).

About 12:30 a.m. on October 30, 1976, plaintiff drove his automobile through the intersection of Lemay Ferry Road and Reavis Barracks Road. He heard the collision of vehicles driven by Conway and Shi-ro occur behind him.

Plaintiff adduced evidence from which a jury could have found the negligence of both drivers contributed to this intersection collision. Conway admitted he never saw Shiro’s automobile before the accident. The evidence is susceptible, by mathematical computation of relative speeds and distances, of proving Shiro should have known of the danger in time to have avoided the collision. For the purposes of this appeal the defendants concede their negligence in causing the first collision may be assumed.

Upon hearing this collision, plaintiff stopped his car and went back to the scene of the accident to see if anyone was hurt or needed assistance. Plaintiff and a passenger in his car, Scott Dowd, then helped Conway, Shiro and their passengers out of the wrecked vehicles to the side of the road. The Shiro vehicle blocked both northbound lanes of traffic. The intersection was dimly lighted and a heavy rainstorm further impaired visibility. Metzger went back to the Shiro vehicle to turn on its emergency flasher lights. Pamela Schermesser, who was northbound on Le-may Ferry, drove her vehicle into the Shiro vehicle while Metzger was inside of it, thereby causing injury to Metzger.

It is axiomatic that the mere fact that injury follows negligence does not necessarily create liability. Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 245 (1955). Plaintiff must also prove the negligent conduct amounted to a violation of some duty owed to him and that the conduct was an efficient and proximate cause of his injury. Gass v. Knittig, 396 S.W.2d 26, 28 (Mo.App.1965). Here, defendants argue that their assumed negligence in causing the first collision was neither a violation of any duty owed to plaintiff nor a proximate cause of his injuries.

While it is true that defendants owed no duty to plaintiff at the time of the first collision because plaintiff was not then endangered by their conduct, that fact alone does not relieve them of liability for his subsequent injuries. The foreseeability of rescue efforts brings the rescuer within the scope of the violated duty.

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the impe-rilled victim; it is a wrong also to his rescuer.

Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437 (1921). Not only is a wrong to the tortfeasor's victim a wrong to the victim’s rescuer, but also a wrong which endangers only the tortfeasor himself is a wrong to the rescuer. See Dodson v. Maddox, 359 Mo. 742, 223 S.W.2d 434 (1949). Although Metzger and Dowd had escorted Conway, Shiro and their passengers to safety before Schermesser arrived on the scene, Metzger’s action in attempting to turn on the emergency flashers of Shiro’s automobile was still part of the rescue. Only the focus of the rescue had changed — from rescuing Conway, Shiro, et al. to preventing the perceived potential for harm to other motorists posed by the wreckage.

The more troublesome issue is that of the causal connection, in law, between the negligence of Conway-Shiro and the injuries sustained by plaintiff. “To be a legal cause of harm to another one’s conduct must be a substantial factor in bringing about the harm. Restatement of Torts, *673 2nd, § 431....." Ricketts v. Kansas City Stockyards Company of Maine, 484 S.W.2d 216, 221-22 (Mo. banc 1972). Determination of substantiality and proximity of the causal relationship between negligence and injury is dependent upon the particular facts of each case and it is seldom that one decision controls another. Price v. Seidler, 408 S.W.2d 815, 820 (Mo.1966); Strake v. R.J. Reynolds Tobacco Co., 539 S.W.2d 715, 718 (Mo.App.1976). In discussing “proximate cause” or “legal cause”, it has been said “[tjhere is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion.” Prosser and Keeton on Torts, § 41 (5th Ed.1984).

Defendants do not contend their negligence in causing the first collision was not a cause of the second collision. Indeed, such an argument would be untenable for the second collision could not have occurred “but for” the first collision with its resultant blockage of the two northbound lanes of traffic. Rather, they argue that their negligence was not a proximate cause of plaintiffs injury. They contend plaintiff’s injuries were caused by the intervening negligence of Schermesser and that whatever negligence they may have been guilty of was antecedent and remote. Defendants rely upon a sentence taken from our opinion in Strake v. R.J. Reynolds Tobacco Co., supra; “ ‘the proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event without which the event would not have occurred.’ ” 539 S.W.2d at 718, quoting King v. Ellis, 359 S.W.2d 685, 688 (Mo.1962). We find the ensuing sentence of the Strake opinion equally relevant. “Generally, an efficient, intervening cause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate and immediate cause of the injury, but it may not consist merely of an act of concurring or contributing negligence.”

In Strake a rear-end collision occurred on an icy street about 9 a.m.

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Bluebook (online)
687 S.W.2d 671, 73 A.L.R. 4th 729, 1985 Mo. App. LEXIS 3091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metzger-v-schermesser-moctapp-1985.