Borgstede v. G. H. Wetterau & Sons Grocery Co.

• Decision Date: 03 May 1938
• Docket Number: No. 24402.,24402.
• Citation: 116 S.W.2d 179
• Court: Missouri Court of Appeals
• Parties: BORGSTEDE v. G. H. WETTERAU & SONS GROCERY CO.

116 S.W.2d 179

BORGSTEDE v. G. H. WETTERAU & SONS GROCERY CO.

No. 24402.

St. Louis Court of Appeals. Missouri.

May 3, 1938.

Rehearing Denied May 18, 1938.

Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.

"Not to be published in State Reports."

Death action by Anna Borgstede against G. H. Wetterau & Sons Grocery Company. A jury returned a verdict for plaintiff in the sum of $3,500, whereupon the plaintiff filed a motion for new trial on ground that verdict was inadequate. Judgment granting a new trial solely on the question of amount of damages to be awarded, and defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman, of St. Louis, and George F. Heege, of Clayton, for appellant.

Jeffries, Simpson & Plummer, of St. Louis, for respondent.

McCULLEN, Judge.

Respondent, plaintiff below, brought this suit as the widow of Louis Borgstede to recover damages for the death of Borgstede resulting from injuries sustained by him on August 14, 1930, when he was struck by an automobile. The automobile was operated by William Waldbauer, who was at that time employed as a salesman and collector by G. H. Wetterau & Sons Grocery Company, appellant, hereinafter referred to as defendant. A trial before the court and a jury resulted in a verdict in favor of plaintiff and against defendant in the sum of $3,500. Plaintiff filed a motion for a new trial, which was sustained by the court on the fifth, sixth, eighth, and ninth grounds thereof, which charged in various ways that the verdict of the jury was inadequate. In granting plaintiff a new trial, the court ordered that the verdict and judgment as to the liability of the defendant stand in force, and that the new trial be limited solely to the issue as to the amount of damages to which plaintiff is entitled. From the action of the trial court in so granting a new trial, defendant has appealed.

The trial out of which this appeal arises was the second trial of the cause before the same court. The case was originally instituted against William Waldbauer and the defendant herein. At the first trial there was a verdict and judgment in favor of plaintiff and against both said defendants for $10,000. Defendants appealed to the Supreme Court, where the judgment was reversed and the cause remanded because of errors in connection with instructions. See Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373.

It appears that while the cause was pending on appeal in the Supreme Court after the first trial, William Waldbauer died, and the cause was thereafter dismissed as to him.

Prior to the second trial, plaintiff made a few corrective amendments in the language in her petition with respect to the assignment of negligence therein which was based on the humanitarian doctrine, and the second trial was had upon such amended petition. It charged, among other things, negligence on the part of defendant based upon the humanitarian doctrine for defendant's failure to stop the automobile mentioned, or to alter or check its course, or to give warning of its approach. Defendant filed an amended answer to said amended petition, which contained a general denial and a plea of contributory negligence on the part of the deceased Borgstede, in that he negligently walked or ran into the side of said automobile, and solely as a result thereof was injured.

The evidence shows that Borgstede died on August 15, 1930, the day after he sustained his injuries, and it is conceded that his death was caused by the injuries he sustained when struck by the automobile driven by William Waldbauer, defendant's salesman. Borgstede left surviving him his widow, plaintiff herein, and five children, four of whom were minors at the time of his death.

The question to be determined on this appeal is whether or not the trial court abused its discretion and committed reversible error in limiting to the issue of damages alone the new trial which it ordered.

Defendant contends that the evidence as to its liability was in conflict, and that the issue was closely contested, which, together with the absence of other facts to explain the small size of the verdict, clearly indicated that the verdict was the result of a compromise on the part of the members of the jury; that the action of the trial court in ordering a new trial as to damages only, after such a compromise verdict, erroneously deprives defendant of the right to have the question of liability determined by a proper consideration of all the jurors. Defendant concedes that, if the liability of defendant be assumed, then a verdict of $3,500 was not fair compensation to the widow for her loss. Defendant argues, however, that those jurors who believed that defendant was not negligent, and hence not liable, obviously compromised their convictions with the jurors who believed defendant was negligent, and therefore liable, in return for an agreement to bring in a smaller verdict, and that the new trial should be on all issues and not confined to the issue of damages alone.

At the second trial plaintiff testified that her deceased husband's earnings annually were about $4,500; that he was about forty-six years of age at the time of his death, and prior thereto was in good health.

The evidence shows that the accident occurred at the intersection of Grand boulevard and St. Louis avenue in the city of St. Louis at about 8 o'clock on the evening of August 14, 1930. Grand boulevard is a public street running north and south and St. Louis avenue is a public street running east and west. There were two sets of street car tracks in the middle of Grand boulevard, one for northbound street cars and the other for southbound street cars, and two sets of street car tracks in the middle of St. Louis avenue, one for eastbound street cars and the other for westbound street cars. There was an automatic "Stop" and "Go" sign on each of the four corners of the intersection to govern traffic on the two streets.

Watson Gadd testified as a witness for plaintiff that he was driving an automobile north on the east side of Grand boulevard just prior to the accident, and brought his automobile to a stop at the automatic stop signal on the south side of St. Louis avenue; that, when the signal changed for north and southbound traffic to move on Grand boulevard, he started his car, and when it had reached the eastbound car track on St. Louis avenue he saw Borgstede being struck by the automobile driven by William Waldbauer; that when Borgstede was struck he was between the southbound car track on Grand boulevard and the west curb of Grand boulevard; that when Waldbauer's automobile struck Borgstede it knocked or rolled his body from the crosswalk on the north side of St. Louis avenue crossing over Grand boulevard, a distance of about forty to fifty feet, to the westbound car track on St. Louis avenue.

Albert Minkle, a newsboy, testified that he was standing on the northeast corner of Grand boulevard and St. Louis avenue at the time the accident occurred; that he saw Borgstede walk across St. Louis avenue to the northeast corner of Grand boulevard and St. Louis avenue, and then proceed to cross Grand boulevard from east to west; that when Borgstede started to cross Grand boulevard, the signal to go was in his favor; that he was walking in a stooped position, with his head down, and was almost struck by an automobile which was making a right-hand turn from St. Louis avenue into Grand boulevard in a northerly direction; that Borgstede stepped back to the sidewalk on the east side of Grand boulevard to avoid being struck by the automobile mentioned, and then started again to cross from east to west over Grand boulevard; that, when Borgstede got about as far as the street car tracks on the east side of Grand boulevard, the traffic signal was no longer in his favor, but he continued to cross the street and had reached the west car track when he was struck by the automobile driven by Waldbauer, which was going south on Grand boulevard about even with the west car track on Grand boulevard; that the automobile dragged Borgstede's body about thirty or forty feet.

It appearing that William Waldbauer was dead, plaintiff introduced in evidence his testimony at the former trial. Said testimony was to the effect that Waldbauer's automobile was in good condition, and that the brakes were good; that he was working for defendant G. H. Wetterau & Sons Grocery Company on commission as a salesman; that he used his own automobile in making calls; that just prior to the accident, he had come from 4200 Pleasant avenue, where he had attempted to collect an account for the defendant grocery company from a retail grocery store; that, as he approached St. Louis avenue, going south on Grand boulevard, he was going at a speed of about twenty or twenty-five miles an hour; that, under the conditions existing on Grand boulevard at that time, he could have stopped his automobile within a distance of ten feet; that the weather was dry and clear; that he had passed said intersection frequently and was familiar with it; that his automobile lights were burning and he could see about fifty or sixty feet ahead of him; that he was driving on Grand boulevard, with his wheels about three or five feet west of the southbound car track; that automobiles were coming from the south, going north on Grand boulevard, with headlights toward him, but there were no automobiles driving in front of him; that he did not see Borgstede until the collision; that he did not know where Borgstede was when the impact occurred, and did not see him until he suddenly fell on the hood of Waldbauer's automobile; that he did not sound his horn or give any signal; that the first time he actually saw Borgstede's body was when it passed the door of his car on the left-hand side; that, after the collision, Borgstede was lying about ten feet north of the cross-walk on Grand boulevard; that he stopped his automobile in the middle...