Barth v. Boyer
| Decision Date | 06 May 1930 |
| Docket Number | No. 21172.,21172. |
| Citation | 27 S.W.2d 499 |
| Parties | BARTH v. BOYER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Francois County; S. H. Boyer, Judge.
"Not to be officially published."
Action by Bess Barth against C. Z. Boyer. After judgment for defendant, plaintiff's motion for a new trial was sustained, and defendant appeals.
Affirmed and remanded.
Carter, Jones & Turney, of St. Louis, and Benj. H. Marbury, of Farmington, for appellant.
Cope & Tedrick, of Poplar Bluff, and W. A. Brookshire, of Farmington, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Bess Barth, on the 5th day of July, 1928, while she was riding in an automobile along highway No. 61, in St. Francois county, Mo., where said highway intersects No. 32. Plaintiff was riding in the automobile with her husband. Defendant, Boyer, was driving a funeral coach along a county road, and was approaching highway No. 61 from the left. According to the petition and plaintiff's testimony, he failed to give any warning of his approach, and did not stop at the intersection of the two highways, although there was a sign there warning vehicles to do so. As a result of the collision, plaintiff was thrown against the steering wheel, and received injuries for which she sues.
The answer was a general denial, coupled with a plea of contributory negligence.
The evidence offered on the part of the plaintiff tended to show that defendant drove his car into the intersection without any warning, at a rapid rate of speed, struck the car in which plaintiff was riding, and injured her.
The evidence offered on the part of defendant was to the effect that the party operating the car in which plaintiff was riding failed to give the right of way to the funeral coach, which led the funeral procession, and was operating the automobile at a high, excessive, and dangerous rate of speed.
The case was tried before the court and a jury, and a verdict and judgment was rendered in favor of defendant. The court sustained plaintiff's motion for a new trial, but did not indicate the ground upon which the motion was sustained.
Section 1454, Revised Statutes Missouri 1919, requires the trial judge to specify the grounds upon which he sustains the motion for a new trial. Yet, if he fails to do so, as he did in this case, it will not invalidate his action. One of the grounds in the motion for a new trial is that the verdict is against the weight of the evidence. Where the trial judge sustains a motion for a new trial, without specifying the grounds upon which he sustains it, the presumption is that it was sustained on the ground that the verdict is against the weight of the evidence. Jiner v. Jiner, 182 Mo. App. 153, 168 S. W. 231; Harris v. McQuay (Mo. App.) 242 S. W. 1011; ...
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