Baumle v. Smith

• Citation: 420 S.W.2d 341
• Decision Date: 13 November 1967
• Docket Number: No. 52280,No. 1,52280,1
• Parties: John W. BAUMLE, Appellant, v. William M. SMITH, Ezra E. Garrett, and Terrance W. Young, Respondents
• Court: United States State Supreme Court of Missouri

Page 341

420 S.W.2d 341

John W. BAUMLE, Appellant, v. William M. SMITH, Ezra E. Garrett, and Terrance W. Young, Respondents.

No. 52280.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1967.

Douglas W. O'Neill, Gordon W. Neilson, St. Louis, for appellant.

John D. Gallagher, Gallagher & Hackmeyer, Clayton, for respondent, Ezra E. Garrett.

F. X. Cleary, Donald L. James, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent Terrance W. Young.

Bernard C. Brinker, Carter, Fitzsimmons & Brinker, Clayton, for respondent, William M. Smith.

HOUSER, Commissioner.

John W. Baumle, a passenger-guest riding in a Corvair automobile, brought a $50,000 action for damages for personal injuries against his host-driver, Ezra E. Garrett, joining also as parties defendant Terrance W. Young and William M. Smith. Plaintiff alleged that a Falcon automobile driven by Young collided with the Corvair and that subsequently the Corvair was struck by a dump truck driven by Smith. Plaintiff charged each defendant separately with various assignments of negligence. At the close of plaintiff's case the court sustained a motion for a directed verdict filed by defendant Garrett and at the close of all the evidence caused one of the jurors to sign a verdict finding in favor of defendant Garrett. The cause was submitted to the jury as to the other two defendants and the jury returned a verdict in their favor. From the judgment entered upon the verdicts, by which plaintiff took nothing and all defendants were discharged, plaintiff has appealed.

The first question is whether plaintiff filed his motion for new trial too late. Respondent Garrett contends that as to him the motion was filed on the sixteenth day after entry of judgment, and therefore appellant has preserved nothing for review as to this defendant under Civil Rule 78.02, V.A.M.R. which provides that: 'A motion for a new trial shall be filed not later than 15 days after the entry of the judgment. The judgment shall be entered as of the day of the verdict. * * *'

The trial began on March 21 and continued through March 22 and 23. Plaintiff rested at the conclusion of the proceedings on March 23. On that date the court stated that he 'granted' defendant Garrett's motion for a directed verdict, wrote 'Granted' on the motion and signed his name as judge. The trial continued through March 24 and March 25. The taking of evidence was concluded on March 25. On that date, after the instructions had been prepared and before reading them to the jury, the court announced that defendant Garrett was no longer in the case, and caused one of the jurors to sign a verdict finding in favor of Garrett. On that date, March 25, the jury returned its verdict as to the other two defendants, and on that same day the court rendered judgment for all defendants. Plaintiff filed his motion for new trial on April 8, 1966.

The motion for new trial was filed fourteen days after the judgment was entered and sixteen days after the court made the ruling granting defendant Garrett's motion for a directed verdict. The court held this ruling in abeyance pending receipt of the verdict of the jury with respect to the other two defendants. The court did not render any final judgment, or any judgment at all, as to defendant Garrett on March 23. There was only one final judgment from which an appeal could be taken, or to which a motion for new trial could be directed. That was the judgment rendered March 25. The motion for new trial, filed fourteen days after March 25, was filed in time.

Appellant first complains of error in directing a verdict for defendant Garrett, the host-driver, making the point that there was sufficient evidence to make a submissible case of negligence against Garrett. In determining whether plaintiff made a case for the jury as against defendant Garrett we must consider all of the evidence in the light most favorable to plaintiff, taking his evidence as true where not entirely unreasonable or opposed to physical laws, and giving him the benefit of all favorable inferences arising from all the evidence and rejecting unfavorable inferences. A case should not be withdrawn from the jury unless the facts in evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ. DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Hastings v. Coppage, Mo.Sup., 411 S.W.2d 232, 235(1, 2).

It was a clear day. Lindbergh Boulevard in St. Louis County was a 4-lane concrete arterial highway consisting of two northbound and two southbound lanes. Each of the four lanes was approximately 10 feet wide. There was no median strip or divider separating the northbound lanes and the southbound lanes. Only painted stripes separated the two sets of lanes. Traffic was heavy. Plaintiff was riding in the right front seat of Garrett's southbound Corvair automobile. There were three passengers in the Corvair. The Corvair was traveling at a speed of 40--45 m.p.h. in the 'inside' southbound lane,--the lane nearest the center line. Defendant Young, driving a Falcon automobile, entered Lindbergh from a side road from the west, turned right into Lindbergh and proceeded south, traveling behind the Corvair, in the outside southbound (or 'curb') lane, at a speed of from 40--50 m.p.h. Defendant Smith, driving a 15,500 pound empty truck north on Lindbergh at a speed of 35--40 m.p.h., was occupying the 'inside' northbound lane,--the lane nearest the center line. At some point of time the Falcon moved from the curb lane to the inside lane and at some point of time the Corvair moved from the inside southbound lane over and across the center line into the inside northbound lane, at approximately a 45 angle. There in the northbound inside lane the left front of the Corvair was struck by the northbound truck driven by defendant Smith.

There was substantial evidence from which these facts could be found: When the Falcon turned left from the curb lane to go into the inside southbound lane in front of the Corvair the electric left turn signals on the Falcon were flashing. Defendant Garrett put on his brakes when the Falcon made its movement to the left, and the Corvair's speed was thereby reduced, but immediately thereafter the right front bumper of the Corvair collided with the left rear bumper of the Falcon with a slight impact. Thereafter, with its brakes on and with each of its rear wheels making tire marks, the Corvair traveled a distance of 80 feet in the course of which it crossed the center line and went into the inside lane of the northbound lanes. There it came to a stop with the motor stalled, sitting at a 45 angle headed southeast, with its left rear wheel on the center line and its left front wheel extending out more than five feet into the northbound lane. Forty-five feet of skid marks were left on the pavement by the Corvair. When the Corvair came to a stop defendant Garrett saw the oncoming truck, which was then 500 feet south of the Corvair. The northbound truck continued to come toward the Corvair, in the same lane, at unabated speed. Defendant Garrett tried to start the motor of the Corvair but failed. Although his horn was working defendant Garrett did not honk his horn to attract the attention of defendant Smith, the driver of the northbound truck. From the time the Corvair came to a stop until the moment of impact between the truck and the Corvair five or six seconds elapsed. The truck could have been stopped, under the existing circumstances, including reaction time, in a distance of 200 to 248 feet.

The foregoing evidence would have authorized the submission to the jury of the issues of negligence on the part of the defendant Garrett under allegations of the petition charging negligence on his part in the matters of lookout, speed, avoiding both collisions, control, driving on the wrong side of the center line, and failure to warn.

In reaching this conclusion we necessarily ignore testimony from other witnesses tending to show that the impact with the Falcon was caused by the sudden swerving of the Falcon into the path of the Corvair; that Garrett put on his brakes but could not prevent the impact with the Falcon; that the impact 'knocked' the Corvair over the center line and into the northbound lane when the northbound truck was only 15 feet from the Corvair, and that the collision with the truck occurred almost instantly after the crossover and while the Corvair was still in motion.

Appellant's second point is that the court abused its discretion in not granting plaintiff a new trial on the ground that the verdict was against the greater weight of the evidence.

The weight of the evidence is not open to question in this court. White v. Rohrer, Mo.Sup., 267 S.W.2d 31, 34(2). The determination whether a verdict is against the weight of the evidence is a matter within the exclusive province of the trial court. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 560(5). The question having been raised in his motion for new trial and ruled adversely to plaintiff, that is the end of the matter. This court on appeal is not authorized to pass upon the weight of the evidence, Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932, 933; Scott v. Gray, Mo.Sup., 337 S.W.2d 38, 41(3), and will not interfere with the action of the trial court approving a verdict assailed on this ground, Phillips v. Shaw, Mo.Sup., 381 S.W.2d 768, 770(1), unless it clearly appears that the trial court has abused or arbitrarily exercised its discretion. 'We cannot find abuse of discretion or arbitrary action in a case where the question of negligence was a jury question, even though we should feel that as triers of the facts we might have decided it differently, when there is nothing to show passion, prejudice or misconduct.' Conser v. Atchinson, T. & S.F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 591. The issue of the...