La Banca v. Pundmann
| Decision Date | 01 February 1941 |
| Docket Number | 36874 |
| Citation | 147 S.W.2d 466 |
| Parties | LA BANCA v. PUNDMANN |
| Court | Missouri Supreme Court |
Wm Waye, Jr., of St. Charles, for appellant.
Randolph Mudd, Urban S. Mudd, and Claude W. McElwee, all of St. Louis for respondent.
COOLEY and WESTHUES, CC., concur.
BOHLING, Commissioner.
Donata La Banca sued Edward Pundmann for $ 25,000 on account of alleged injuries sustained as a result of being struck by defendant's automobile. Verdict for defendant. Plaintiff's motion for new trial was sustained on the stated ground the verdict was against the weight of the evidence. Defendant appealed. On the theory plaintiff did not make a submissible case and, therefore, there was no discretion for the trial court to exercise in weighing the evidence, defendant presents the single issue of actionable negligence vel non. Consult Chitwood v. Davis Construction Co., Mo.App., 113 S.W.2d 1043, 1045 [2] and cases cited; Masdon v. Stine, Mo.App., 66 S.W.2d 579, 582, [1, 2]. The issue presents the testimony favorable to plaintiff.
On the afternoon of September 9, 1937, a parade was being formed for ushering in a pageant of progress in St. Charles, Missouri. The St. Charles Municipal band, of which plaintiff was a member, formed in the center of McDonough street, an east and west street of St. Charles, with four musicians in the west or front row, three in the second row, four in the third row and three in the fourth row. Someone announced the parade was ready to start. Plaintiff, who was the north musician on the third row, stepped out of line, placing himself about a foot north of the musicians and ten to fifteen feet south of the north curb of McDonough street and, facing west, proceeded to instruct the musicians as to the sequence in which the pieces of music were to be played. Defendant's automobile, a four-door Lincoln Zephyr, was to be in the parade and was parked at the north curb of McDonough street, headed west, about ten feet east of plaintiff, with its left (or south) rear door open. Defendant was in the rear seat and his daughter was at the steering wheel. The open door was hinged on the rear and was about four feet wide. While plaintiff was instructing the musicians, defendant's automobile, without any warning, was started west, with its left rear door open, towards its position in the parade ahead of the band, swerved toward the center of the street, and the open door struck plaintiff's back a hard blow, allegedly inflicting the injuries for which he seeks recovery. There was nothing directly west of defendant's...
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