Bock v. Rinderknecht
| Decision Date | 03 December 1918 |
| Citation | 207 S.W. 245,200 Mo.App. 496 |
| Parties | GEORGE BOCK, by his next friend, MICHAEL BOCK, Appellant, v. HERMAN RINDERKNECHT, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon William T. Jones, Judge.
REVERSED AND REMANDED (with directions.)
Judgment reversed and cause remanded.
William Hilkerbaumer for appellant.
(1) Having found a verdict for plaintiff, it remained the duty of the jury, under the instructions of the court, to ascertain the extent of plaintiff's injuries and to award him adequate compensatory damages. No conscientious person can say that one dollar is adequate compensation for the injuries received and the pain and suffering endured by plaintiff, as shown by the uncontroverted evidence. The remedy for such a miscarriage of justice rests mainly with the trial court in awarding a new trial, and failure to do so constitutes reversible error. Appellate courts do not hesitate to set aside such verdicts where the trial court has refused to do so, on the ground that such refusal is not the exercise of a sound discretion. Fisher v. City of St. Louis, 189 Mo. 567; Welch v. McAllister, 13 Mo.App. 89; Fairgrieve v. Moberly, 29 Mo.App. 141; Craton v Huntzinger, 187 S.W. 48; Noble v. Kansas City, 222 Mo. 121, 120 S.W. 779; Chouquette v. Railroad Co., 152 Mo. 257; Dorsett v. Chambers, 187 Mo.App. 276, 173 S.W. 725; Richardson v. Mo. Fire Brick Co. 122 Mo.App. 529.
Muench, Walther & Muench for respondent.
(1) (a) "Where a jury has returned a verdict for nominal damages, in a case where the plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate court at the instance of plaintiff." Haven v. Missouri Railroad Co., 155 Mo. 216, 223; Pritchard v. Hewitt, 91 Mo. 550; Overholt v. Vieths, 93 Mo. 426; Leahy v. Davis, 121 Mo. 236; Dowd v. Air Brake Co., 132 Mo. 579; Randle v. Mo. Pac. R. R. Co., 65 Mo. 334. (b) Nor will such verdict be set aside as "insufficient, unless it be such as bears evident marks of prejudice, passion or corruption." Leahy v. Davis, supra; Pritchard v. Hewitt, supra. (2) (a) There was but one specification of negligence (out of five) submitted to the jury, and this one was completely refuted by the testimony. The charge was that the horse was driven through while the gate was still being opened, and before opened entirely. Not only is there complete oral proof to the contrary, but the physical fact that the front hub passed the moving gate, and only the rear hub struck it, conclusively shows that the gate must have been completely opened, and at a standstill when the contact occurred. Such physical facts constitute a showing too conclusive to be affected or varied by mere oral evidence. Roberts v. Railway, 56 Mo.App. 64; Weltmer v. Bishop, 171 Mo. 116; Sexton v. Railway, 245 Mo. 275. (b) Having relied upon a specific charge of negligence, plaintiff was bound to prove the charge as laid. The proof did not sustain the charge, hence plaintiff should not have recovered. Sexton v. Railway, supra.
This is an action by a minor, by his next friend, for personal injuries sustained and predicated on defendant's alleged negligence. The petition alleges the damages at $ 7500. The case was tried to a jury and a verdict resulted in favor of plaintiff for the sum of $ 1. Plaintiff thereupon filed a motion for new trial, challenging the verdict on the ground, among others, that the verdict was grossly inadequate and against the evidence and the weight of the evidence; contrary to the instruction of the court and so grossly inadequate and contrary to the evidence and the weight of the evidence as to indicate bias, passion or prejudice on the part of the jury, and because plaintiff was entitled to substantial damages. Upon this motion being overruled plaintiff in due course brings this appeal, assigning said ruling as error.
The record before us discloses that the sufficiency of plaintiff's evidence to make a case for the jury was not challenged, nor was any peremptory instruction requested on the part of the defendant at the close of the entire case.
The defendant owned and conducted a grocery store, located on the southwest corner of Carrie and Prescott avenues, in the city of St. Louis. These premises faced on Carrie avenue and the lot ran south along the line of Prescott avenue to an alley. The store building was located on the front or north end of the lot and extended back along Prescott avenue forty-eight feet. There was also a twenty foot shed at the rear of the lot which abutted the sidewalk and the alley. That part of the lot between the store building and the shed was fenced in as a wagon yard. A fence was built along the sidewalk on the west side of Prescott avenue from the end of the store building to the shed and there was a wagon gate ten feet wide in this fence. The wagon gate was maintained and operated by the defendant and used by himself and his employees in driving in and out of the wagon yard. On April 2, 1914, the plaintiff then eight years of age, was injured by the falling of the wagon gate upon him as he was walking along the sidewalk on Prescott avenue.
While the petition contains five assignments of alleged negligence, the case was finally submitted on but one of these, namely: that "defendant, his agents, servants and employees, were further negligent and careless in driving or attempting to drive through said gateway with a wagon drawn by a horse or horses, before said gate was fully open or when same was not sufficiently open to allow said wagon to pass, and by negligently and carelessly causing or permitting a wheel or other part of said wagon to run against said gate or to catch or pull on the same and thereby causing said hangers or one or more of them to leave said track, causing said gate to fall upon said sidewalk and upon plaintiff while he was lawfully on said sidewalk, injuring him as herein stated."
According to plaintiff's witnesses the plaintiff, his older brother and a friend, Bennie Kleinberg, passed the defendant's store on the day that plaintiff met with his injuries, just at a time when a son of the defendant was driving the defendant's grocery wagon south on Prescott avenue toward the gateway leading into the defendant's yard. Plaintiff's brother hopped on to the rear of the delivery wagon while the plaintiff and Kleinberg walked south along the sidewalk on the west side of Prescott avenue. When the wagon reached a point in the street opposite the gate the defendant's son who was driving the wagon, requested the Kleinberg boy to open the gate; the horse and wagon at that time were facing the gate in a westerly direction. Kleinberg got to the front end of the gate and started to open it, pushing it back toward the alley, that is pushing the gate toward the south. Plaintiff at that time was on the sidewalk to the north of the gate but while the Kleinberg boy was opening the gate plaintiff walked around the rear of the wagon and back on to the sidewalk to the south of it. As the wagon was driven into the yard through the gate, the hub of the south rear wheel struck the gate knocking it over. The gate fell upon plaintiff who was on the sidewalk, and injured him.
Bennie Kleinberg as a witness for plaintiff testified:
Willie Bock, plaintiff's brother, testified for the plaintiff that the boy driving the wagon asked Bennie Kleinberg to open the gate, which Kleinberg did, pushing the gate toward the alley,
Dr John A. Cawood, a witness for plaintiff, testified that he had been a physician for twenty years and a surgeon for ten years practicing in the city of St. Louis; that when he arrived at the home of the plaintiff on the afternoon of the day...
To continue reading
Request your trial