Albert H. Hoppe, Inc. v. St. Louis Public Service Co.
| Decision Date | 21 February 1950 |
| Docket Number | No. 27776,27776 |
| Parties | ALBERT H. HOPPE, Inc. v. ST. LOUIS PUBLIC SERVICE CO. |
| Court | Missouri Court of Appeals |
Mattingly, Boas & Richards, St. Louis, Lloyd E. Boas, St. Louis, for appellant.
Wilson, Cunningham & McClellan, St. Louis, Richard D. Gunn, St. Louis, George C. Willson, III, St. Louis, for respondent.
WOLFE, Commissioner.
This is an action for property damages sustained by the plaintiff when a hearse that it owned was struck by a bus owned and operated by the defendant. Upon trial there was a verdict and judgment for the defendant but twenty-nine days thereafter the court of its own motion set aside the verdict and judgment on the ground that they were against the weight of the evidence. It is from this order that defendant appeals.
On July 27, 1948, the plaintiff's hearse was being driven by Joseph O'Connor, plaintiff's employee, north on Twenty-second Street in the City of St. Louis. O'Connor was accompanied by Eugene Miller and Richard Lemke, both of whom also worked for Albert H. Hoppe, Inc. They were transporting for delivery a casket containing a corpse and this was being done for and at the direction of their employer.
O'Connor stated that as he was going north on Twenty-second Street he passed a truck in the block south of Madison Street and then continued northwardly in the right lane of traffic. He reached a point where Madison intersects Twenty-second Street and after looking in both directions and seeing no vehicles approaching his line of traffic, he started through the intersection, accelerating his speed to an estimated eighteen miles per hour. When the hearse was partly past the center line of Madison Street, it was struck in the center by the defendant's eastbound bus. The bus pushed the hearse onto the sidewalk at the northeast corner, knocking down a lamp standard and killing one of O'Connor's assistants.
There are buildings on all four corners of the intersection and they are the width of the sidewalk from the curb. Both streets are about thirty-six feet wide and there is nothing to obstruct one's view in any direction after entering the intersection.
Miller, who was with O'Connor, stated that he did not see the bus until they were into the intersection and it was about to hit them. He also stated that the hearse was going about eighteen miles per hour.
A witness named Egan, who was a passenger on the bus, stated that it was traveling at the rate of twenty-five to thirty miles per hour and that it did not slacken its speed until it hit the hearse.
Another bus passenger named Schmatz, testifying for the plaintiff, made the same estimate of the speed it was traveling and stated that the hearse entered the intersection first.
Arthur Loehrer testified that he was a passenger on the bus which was traveling between twenty-five and thirty miles per hour and that the hearse was in the intersection traveling at about twelve to fifteen miles per hour when the bus was twenty to twenty-five feet from the intersection.
The driver of the truck that the hearse had passed as it approached Madison Street testified that the hearse entered the intersection first.
Testifying for the defendant, the bus driver stated that he slowed down as he approached Twenty-second Street and as there was no one to get off the bus he accelerated his speed, blew the horn and looked to the left and right. He saw the hearse to the right and it was about entering the south curb line of Madison Street. He stated that his bus was back by the building line. He applied his brakes but could not stop before hitting the hearse.
Three other bus passengers testified that both vehicles reached the intersection at about the same time.
On cross-examination O'Connor said that when he reached the intersection he could see a quarter of a block down Madison Street. He estimated this distance to be about thirty-five feet. He also stated that after he got into the intersection he looked westward but did not see the bus and he never saw it until it struck the hearse.
There was also evidence relating to the damage done to the hearse.
At the time of the collision there was in force an ordinance of the City of St. Louis which provided:
The case was submitted to the jury on the failure under the ordinance to give the right of way to the hearse.
The jury found for the defendant and fourteen days after the entry of the verdict and judgment the plaintiff filed a motion for a new trial. Twenty-nine days after the judgment the court ordered the motion for a new trial stricken from the record on the ground that it had not been filed within the time allowed by the statute. The court further ordered on its own motion that the verdict and judgment be set aside for the reason that they were against the weight of the evidence.
The fact that the plaintiff filed a motion for a new trial after the time allowed by statute and the fact that it was stricken by the court has no bearing on the right of the court of its own motion to set aside the verdict as against the weight of the evidence. Laws of 1943, p. 353, sec. 119, Mo.R.S.A. Sec. 847.119, provides: 'Not later than 30 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.'
This discretionary right is vested in the court and may be exercised regardless of whether or not a motion for a new trial has been filed. Supreme Court Rule 3.25. De Maire v. Thompson, Mo.Sup.,...
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