Evans v. Landolt
| Decision Date | 08 March 1965 |
| Docket Number | No. 50952,No. 1,50952,1 |
| Citation | 389 S.W.2d 15 |
| Parties | Charles Louis EVANS, (Plaintiff) Respondent, v. James LANDOLT, a Minor, (Defendant) Appellant |
| Court | Missouri Supreme Court |
Roberts & Roberts, by Raymond R. Roberts, Farmington, for respondent.
E. L. McClintock, Jr., Flat River, for appellant.
PAUL VAN OSDOL, Special Commissioner.
Action for $28,000 for personal injuries and property damage alleged to have been sustained when the eastbound automobile driven by defendant on East Main Street in Flat River collided with the automobile driven by plaintiff which had moved westwardly on East Main and had turned left off of East Main onto a parking lot south of the street.
At the conclusion of the trial of this case, April 15, 1964, a jury returned a verdict for defendant, but the trial court sustained plaintiff's motion for a new trial on the specified ground 'that the Court believes the verdict and judgment thereon to be contrary to the greater weight of the credible evidence in this case.' Defendant has appealed from the new-trial order, and herein urges the one point that the trial court 'erred in sustaining plaintiff's motion for a new trial on the ground that the verdict was against the greater weight of the evidence for the reason that plaintiff failed to make a submissible case on the two theories of negligence which were submitted and the trial court's ruling was not a judicial exercise of discretion but was an arbitrary exercise of authority.'
It is within the trial court's discretion to grant a new trial on the ground the verdict of the jury was against the weight of the evidence. However, such discretion was to be judicially, not arbitrarily exercised. It has been said that, in determining the question whether the trial court (in granting a new trial to plaintiff on the ground the verdict was against the weight of the evidence) was acting in the exercise of its judicial discretion, the appellate court will endeavor to ascertain if there was sufficient substantial evidence to sustain a verdict for plaintiff, the party to whom the new trial was granted. Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, and cases therein cited; Dawson v. Scherff, Mo.Sup., 281 S.W.2d 825; Hendershot v. Minich, Mo.Sup., 297 S.W.2d 403; Kiburz v. Loc-Wood Boat & Motors, Inc., Mo.Sup., 356 S.W.2d 882; Madsen v. Lawrence, Mo.Sup., 366 S.W.2d 413; Williams v. Cass, Mo.App., 372 S.W.2d 156; Sec. 510.330 RSMo 1959, V.A.M.S.
East Main Street in Flat River is paved with concrete twenty feet wide with graveled-surface shoulders on either side. A building occupied by the Caldwell Funeral Home fronts northwardly. The front of the building is approximately eighty feet south of the south edge of the pavement. The area between the building and the pavement is used by the Caldwell funeral service as a parking lot for motor vehicles. The motor-vehicular collision involved in this case occurred near the south edge of the pavement in the northerly portion of the parking lot.
A root beer stand is located on the north side of East Main approximately twelve hundred feet west of the place of collision. The stand is on a hill referred to by the witnesses as 'Federal Hill.' The elevation of East Main declines nearly thirty-five feet in the stated approximate distance between the root beer stand and the place where the collision occurred. There is nothing to obstruct the new from Federal Hill eastwardly down East Main to the place of the collision.
At about ten thirty in the morning of April 21, 1963, plaintiff had been proceeding westwardly on East Main. He was intending to go to the funeral home. He had been driving twenty to twenty-five miles per hour. Plaintiff testified that, when he was about a block and a half east of where he turned left, he saw defendant's eastbound car which was then three blocks (or a little more) west of the place where plaintiff made his turn. It 'didn't look to me like he was going too fast.' Prior to getting up to the point where plaintiff turned, plaintiff turned on the left-turn signal light; and, in his nearer approach, plaintiff reduced speed to five or ten miles per hour, allowing another vehicle on the south lane to pass eastwardly. A witness for plaintiff said the left-turn light was turned on when plaintiff's vehicle was approximately half a block from where plaintiff commenced to turn left. As plaintiff commenced to make the left turn across the south (eastbound) lane, he glanced up and again saw defendant's vehicle about a block and a half away. Plaintiff continued to turn left at an angle of about forty-five degrees and got off the pavement and onto the parking lot when he was hit. Plaintiff had just seen that defendant's car, moving sixty to seventy miles per hour, had moved six or seven feet off of (south of) the pavement. The front of defendant's automobile struck the right front side of plaintiff's automobile.
Skid marks indicated defendant's vehicle had been braked for a distance of seventy-six feet. The 'last twenty feet of the skid marks' left the pavement and continued to the point of collision. Debris ('such as dirt and what have you from underneath the fenders and front ends of the cars') was approximately six feet south of the south edge of the pavement.
Defendant testified that, driving eastwardly on East Main, he had slackened to a low speed when he was near the root beer stand; and then, in moving farther eastwardly down Federal Hill, defendant 'accelerated.' Defendant was not able to estimate the highest speed his vehicle moved on down the declining grade to the point of collision. When he saw plaintiff making the left turn, defendant 'hit the brakes' and held them on, and his car 'drifted' to the right. Defendant had seen plaintiff's car, but he hadn't seen plaintiff give a left-turn signal. Defendant said he was seventy-five to ninety feet from plaintiff's vehicle when plaintiff started to turn left. Defendant didn't 'turn the wheels' and pass to his left of plaintiff's car, although there was no westbound traffic on the north lane at the time; he 'couldn't.' Defendant entered a plea of guilty in the police court of Flat River. The charge was careless and reckless driving.
As a preliminary to our discussion of the evidence, we shall dispose of argument in defendant's brief that, in the course of the trial, certain stated rulings, statements, and comments by the trial judge, if they were not individually erroneous, were, at the least, strongly indicatory of partiality in favor of plaintiff's case and, at worst, an outright prejudice against defendant. So it seems defendant urges in argument that partiality or prejudice on the part of the trial judge affected or actuated the action of the trial court in sustaining the new-trial motion.
We have examined the entire transcript, and, particularly, we have analyzed, in their trial settings, the rulings, statements, and comments complained of by defendant. We have the opinion the parties, plaintiff and defendant, were accorded a fair and impartial trial; and certainly we see no real or apparent basis in the record for inferring that any partiality or prejudice affected the trial court's action in granting a new trial.
But, says defendant, 'to complete the picture,' it must be pointed out that the trial court committed what defendant says is obvious error by permitting plaintiff to submit his case by instructions based, says defendant, on the MAI but which instructions, again says defendant, do not meet the requirement of 'either the new or old instruction.'
In this connection, we note the trial court submitted plaintiff's...
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...Development Co., Mo., 315 S.W.2d 781, 784(7). But that discretion is to be exercised judicially, not arbitrarily (Evans v. Landolt, Mo., 389 S.W.2d 15, 16(1); Madsen v. Lawrence, Mo., 366 S.W.2d 413, 416(5)); and repeated pronouncements have made it clear that the test as to whether there h......
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...if there is sufficient substantial evidence to sustain a verdict for the party to whom the new trial was granted are Evans v. Landolt, Mo., 389 S.W.2d 15, 16(2), State ex rel. State Highway Commission v. Belvidere Development Co., Mo., 315 S.W.2d 781, 785(8), and Williams v. Cass, Mo.App., ......
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