ON REHEARING. In the motion for rehearing herein, defendant, Yellow Cab Company, says:
"But he (plaintiff) wholly failed to prove that this excess above the lawful speed was the thing that scared him, and caused him to jump into the Sizemore car. He expressly and in so many words admitted that the speed of the cab made no impression upon his mind at all (R. 59.) How in the name of reason could the excessive speed of the cab have `created apprehension' in his mind when concededly it `made no impression whatever upon his mind?'"
The deduction that plaintiff expressly admitted the speed of the cab made no impression upon his mind, is based on the following questions and answers:
"Q. As a matter of fact, the speed of that car made no impression on your mind at the time, did it? A. Well, I believe not.
"Q. So that you were not influenced by the speed of the car by what you did; you just saw it and figured you had time to get out of its way and went on your way? That is true, isn't it? A. That is right; `went on my way.'"
The statements thus made refer to the time when the plaintiff saw the cab sixty to eighty feet from him. Had the cab from that time moved at a lawful rate of speed, as plaintiff had the right to assume it would move, he would have had ample time to pass over that part of the street presently to be occupied by the cab; but in an instant thereafter plaintiff saw the cab only fifteen or sixteen feet away and moving directly toward him. It came to and occupied that position because it had moved along that busy street at an unlawful and negligent rate of speed. Plaintiff, upon seeing the cab in such dangerous proximity believed, as his act shows he did, that he was in peril, moved quickly out of the path of the onrushing cab, and in doing so came in contact with another car.
The unlawful and negligent operation of the cab is in this court by defendant confessed, but defendant says that negligence was not the proximate cause of the injury. Proximate cause has often been defined by the courts. The definition, approved in State ex rel. v. Cox, 310 Mo. 367, 376, 276 S.W. 869, is typical.
"To constitute proximate cause creating liability for negligence the injury must have been the natural and probable consequence of the negligent act. It is the cause which naturally produces a given result. The negligence must be such that by the usual course of *Page 1180 events it would result in injury unless independent moral agencies intervene in the particular injury."
It is not difficult to state an abstract definition of proximate cause but the application of the rule is often difficult because each case must be decided in the "dry light of its own facts." It ought to be sufficient in this case to say that a jury would be justified in finding that if the cab from the time plaintiff saw it sixty or eighty feet distant had thereafter passed along the street at a lawful rate of speed, plaintiff would not have had occasion to believe he was in peril from it or to have moved quickly from its path, or, to state the record facts another way, a jury would be warranted in finding that if the cab had been operated at a lawful rate of speed, plaintiff would not have been injured. That is, "it is natural and probable" that the driving of a cab at a high rate of speed along a busy street will produce injury. "It is the cause which naturally produces a given result."
It is sufficient "if that negligence contributed as one of the proximate causes of the injury." [McElroy v. Swanson,213 Mo. App. 160, 166, 247 S.W. 209.]
The facts and the principles of law applicable thereto are stated in the opinion by ARNOLD, J., and to that opinion we adhere.
The judgment is reversed and the cause remanded. The Commissioner so recommends. Boyer, C., concurs.