Booth v. Gilbert

• Citation: 79 F.2d 790
• Decision Date: 31 October 1935
• Docket Number: No. 10261.,10261.
• Parties: BOOTH et al. v. GILBERT.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F.2d 790 (1935)

BOOTH et al. v. GILBERT.

No. 10261.

Circuit Court of Appeals, Eighth Circuit.

October 31, 1935.

James R. Claiborne, George E. Heneghan, and Bishop & Claiborne, all of St. Louis, Mo., for appellants.

H. Plantagenet Tudor, of St. Louis, Mo. (Bert E. Strubinger and William H. Tombrink, both of St. Louis, Mo., on the brief), for appellee.

Before STONE and FARIS, Circuit Judges, and RAGON, District Judge.

FARIS, Circuit Judge.

Appellee in the trial court had judgment for $10,000 as damages for personal injuries accruing to him in an automobile collision, between the car of appellee and the car of appellant Booth, at the time an employee of appellant Cutler-Hammer, Inc., which collision, it is alleged, was caused by the negligence of Booth.

On May 18, 1932, about 4 o'clock in the afternoon, at the intersection of Whittier street and Westminster place in the city of St. Louis, Mo., a collision occurred between an automobile driven by appellee and an automobile driven by Booth. Appellee was going east on Westminster, and Booth, south on Whittier, which, at the point of collision, cross each other at right angles. So far as the record shows, there was at the time no very congested traffic at the place. In addition to the two cars involved, there was another car, fifty feet south coming north on Whittier and one very close to Whittier going west on Westminster. The latter swerved north in the rear of Booth's car and put on the brakes and Booth slowed down. Almost instantly his car was struck in front by the left rear end of appellee's car which attempted to swerve south and to the right. Booth's car was turned partly around and headed southwest, but stopped within about five feet from the point of collision. This point was at or near the thread or center point of the intersection of the two streets. After the contact, the car of appellee continued east, some twenty-five or thirty feet, turned toward the southwest and ran over the curb, there some six inches high, and struck and came to rest against a tree in the grass parking, and was badly wrecked both at the left rear and on the left side where it hit the tree. Appellee was thrown bodily from the car to the street and struck the sidewalk some four to six feet from the car, seemingly when his car hit and ran over the curb, or, if not, when his car hit the tree, which was barked by the contact. The car of Booth, beyond a small dent in the right front fender and the breaking of the right-hand support of the front bumper, was not at all damaged, nor was Booth at all hurt, or moved from his seat.

Appellee was seriously hurt, confined for many weeks in a hospital, where infections set in and blood transfusions were had, and his injuries to one leg and one arm are such and so serious that he will be crippled permanently.

Seven allegations of alleged negligence are set up in appellee's petition. In the light of the record, the briefs, the assignments of error, and the preservation thereof for review, it is not necessary to make mention of but three. These are: (a) That defendant Booth was, at the time and place of the collision, driving his automobile at "a highly excessive and dangerous rate of speed"; (b) that Booth was not driving his automobile as close to the right-hand curb of Whittier street as was practicable; and (c) that defendant Booth negligently refused, having reached the intersection last, to accord to plaintiff, who was on the right of Booth, the right of way over and across the intersection.

Under the charge of the court the above three alleged acts of negligence were submitted to the jury, as also was the alleged contributory negligence of plaintiff, for that he was driving at a highly excessive and dangerous rate of speed. The other pleaded act of plaintiff's alleged contributory negligence, for that he was not driving "as close as practicable to the right hand side of said McPherson (sic) avenue," was not submitted, though warranted by the evidence of the witness Simpson. But by reason of the failure of appellants to properly, or at all, save the last-mentioned point for review, it goes out of the case.

Seventeen alleged errors are set out in the brief of appellants. Twelve of these are, in effect, that the verdict was not based on sufficient evidence to legally warrant the rendition of a verdict in favor of plaintiff.

Both at the close of the evidence for plaintiff and at the close of all of the evidence in the case, appellants prayed an instruction in the nature of a demurrer to the evidence. These proffered instructions, mutatis mutandis, were precisely similar and read, "the court instructs the jury at the close of the plaintiff's evidence, that your verdict shall be for defendants." As forecast, the peremptory instruction requested at the close of all of the evidence differed from that above quoted, only for that it used the term "all of the evidence," in lieu of the term "plaintiff's evidence." Under the repeated rulings of this court, these motions for a directed verdict were insufficient in definiteness to preserve the point for review, in that they each failed to call the attention of the trial court to the point or points on which the motions were bottomed. Massachusetts Bonding & Insurance Co. v. R. E. Parsons Electric Co. (C. C. A.) 61 F.(2d) 264, 92 A. L. R. 218; Mansfield Hardwood Lumber Co. v. Horton (C. C. A.) 32 F.(2d) 851; Falvey v. Coats (C. C. A.) 47 F.(2d) 856, 89 A. L. R. 1; Standard Accident Ins. Co. v. Rossi (C. C. A.) 52 F.(2d) 547. See, also, Adams v. Shirk (C. C. A.) 104 F. 54, 56; New York Life Insurance Co. v. Doerksen (C. C. A.) 75 F.(2d) 96. Confessedly, there exists, touching the procedural necessity of a definite statement of the grounds relied on in a demurrer to the evidence, some diversity of opinion. All this is pointed out in the late case of New York Life Insurance Co. v. Doerksen, supra, from the Tenth Circuit, wherein this diversity of opinion among the several circuits is rather fully discussed. But even that rule, to which seemingly the Tenth Circuit adheres, could not save the motions for a directed verdict here under discussion. This for the reason that the only debatable ground possibly tenable for the sustaining of a motion for a directed verdict in the case at bar is involved and somewhat recondite. That ground is that the plaintiff was himself guilty of contributory negligence, for that he drove his car, at and before the collision, at a highly dangerous and excessive speed. Upon the bare face of the oral testimony, this fact is not clearly apparent. But when the physical facts are closely analyzed and considered, it it fairly clear that these latter facts tend to prove that the testimony of appellee and his single witness on the point of appellee's speed is erroneous, and that appellee was driving his car, at the time of the collision, at a far greater speed than was defendant Booth. In such case, of course, a plaintiff may not recover on the ground of excessive speed. In such situation, regardless even of the stringent rule in this circuit, but even according to the rule in the majority of the circuits, it was incumbent on appellants in their motions for a directed verdict to make a definite statement of the ground, or grounds relied on. This they utterly failed to do, and so twelve of the alleged errors relied on must fall by the wayside and go out of the case.

The contention of appellants that the court erred in charging the jury on the alleged failure of defendant Booth to drive his car as near the west curb of Whittier street as was practicable cannot be noticed here, because it is not found among appellants' assignment of errors, and appears only in the motion for a new trial with which ordinarily an appellate court is not at all concerned.

Two other of appellants' assignments of error may be considered together and deserve but short shrift. These are: (a) That the verdict rendered was against the weight of the evidence; and (b) that the amount awarded plaintiff as damages by the verdict of the jury was excessive. It is, we think, too well settled for argument to the contrary that a federal appellate court may not consider whether or not a verdict of a jury is against the weight of the evidence, if so it be that there is substantial evidence to uphold it. New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 12 S. Ct. 356, 36 L. Ed. 71; Ætna Life Ins. Co. v. Ward, 140 U. S. 76, 91, 11 S. Ct. 720, 35 L. Ed. 371. The matter of determining whether a verdict is, or is not, against the weight of the evidence, is for the trial court to consider on a motion for a new trial; nor is the granting or refusal of such a motion assignable as error in an appellate court. Winter Case and Ward Case, both supra. These two cases also dispose of appellants' contention of error, for that the verdict in the instant case was excessive. This matter of the alleged excessiveness of the verdict is also ordinarily to be relegated to the discretion of the trial court, to be set in action by a motion for a new trial. There are no facts, so far as we can find from the record, to take this case out of the general rule above announced. And so we conclude that the contentions that the verdict is excessive and that it is against the weight of the evidence must both be disallowed. Lacking authority to review these two contentions, the views of this court upon them are wholly irrelevant, and even if we were convinced that the verdict is contrary to the great weight of the evidence, no legal purpose would be attained by giving voice to our convictions.

So, the only point in the case, which it is possible for this court to review, is the contention of appellants that the court nisi erred in charging on, and leaving to the jury's determination the matter of the alleged negligence of appellant Booth for that he was driving his car at and just before the collision at a "high, excessive and dangerous...