Fritsche v. Mondt

• Decision Date: 25 March 1943
• Docket Number: 38272
• Citation: 171 S.W.2d 600,351 Mo. 121
• Parties: Rose Fritsche v. F. J. Mondt and Arthur Mondt (or Anthony Mondt), Appellants
• Court: Missouri Supreme Court

171 S.W.2d 600

351 Mo. 121

Rose Fritsche v. F. J. Mondt and Arthur Mondt (or Anthony Mondt), Appellants

No. 38272

Supreme Court of Missouri

March 25, 1943

Rehearing Denied June 7, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Affirmed.

Fordyce White, Mayne, Williams & Hartman for appellants.

The trial court erred in sustaining plaintiff's motion for a new trial on the ground that the verdict of the jury in favor of defendant was against the weight of the evidence, for the following reasons: (a) The evidence and testimony to support plaintiff's case was contrary to physical facts, inherently impossible, and of no probative value; (b) There was no substantial evidence to support a verdict for plaintiff; (c) A verdict for plaintiff on such evidence could not properly have been allowed to stand. Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160; Bauer v. Woods, 154 S.W.2d 356; Roseman v. United Rys. Co., 251 S.W. 104; State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915.

Louis E. Miller and Leo F. Laughren for respondent.

(1) The plaintiff made a submissible case under the evidence, and the testimony of the entire case clearly proved that the proximate cause of the collision and injuries to the plaintiff resulted from the negligence of the defendants' driver. Partridge v. Enterprise Transfer Co., 307 Ill.App. 386; Kirchoff v. Van Scay, 301 Ill.App. 366; Crowe Name Plate & Mfg. Co. v. Dommerich, 279 Ill.App. 103. (2) The trial judge has the right to grant a new trial when he believes the verdict is against the weight of the evidence, and an appellate court has no right to interfere with such action of a trial judge although disagreeing with the action taken by the trial court. Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; Sanders v. Harvey, 152 S.W.2d 214; State ex rel. Spears v. Hughes, 346 Mo. 421, 142 S.W.2d 3. (3) The weight of the evidence is not a question of mathematics, but depends on its effect in inducing belief. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Forbis v. Hessing, 328 Mo. 699, 41 S.W.2d 378.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Respondent Fritsche seeks in this action to recover $ 15,000.00 as damages for personal injuries sustained when one of defendants' trucks collided with a car in which she was a passenger. There was a verdict for the defendants. The trial court sustained plaintiff's motion for a new trial on the ground that the verdict was against the weight of the evidence. Defendants appealed.

Appellants concede that the action of the trial court is not reviewable if there is substantial evidence in the record supporting plaintiff's claim, but appellants insist that plaintiff's evidence was insufficient to sustain a verdict in her favor and therefore the action of the trial court was erroneous. If appellants are correct the order of the trial court granting plaintiff a new trial must be set aside and the verdict of the jury reinstated. That is the sole issue on this appeal. The collision occurred at about 10:00 A.M., August 6, 1939, at the intersection of U.S Highway 50 and Seventy-first street, East St. Louis, Illinois. Plaintiff was riding in a car being driven by her husband in a northerly direction on Seventy-first street. The defendants' truck, containing a carload of milk cans filled with milk, was traveling west toward St. Louis on highway 50. There was a stop sign on Seventy-first street at highway 50. The day was clear and the roadways dry. Plaintiff's evidence was that the car in which she was riding stopped about three feet south of the concrete slab at highway 50; that then her husband started to drive the car across the highway but it stalled when the front end was about a foot or so south of the center line of the concrete slab; that her husband attempted to start the car and while doing so the defendants' truck, which was traveling at a rate of speed of about forty miles per hour, struck the front end of the car causing her severe injuries. Plaintiff testified that about the time the car was stopped south of the slab she saw the truck approaching and informed her husband of that fact, to which he replied: "O. K., I see him"; that the truck was then more than two hundred feet away; that when the car stalled on the concrete slab she noticed that the truck coming toward them had its left wheels to the south of the center of the highway. A. W. Fritsche, plaintiff's husband, testified that he was a chauffeur by trade, being employed by the East St. Louis City Lines. He testified that on the occasion in question he stopped his car a few feet from the slab. Note his evidence as to what occurred thereafter:

". . . and I looked down the road and I seen the truck coming, and I would say a hundred and fifty feet or maybe better, and I shoved my car into low gear and proceeded to cross, and when I got the front wheels about the slab the car gave a couple of chugs and the motor died."

"I pulled up the hand brake and shoved the car into neutral and stepped on the starter and it wouldn't respond, and I put the car in low and released my hand brake and stepped on the starter and it looked like it turned over a couple of times; the battery wasn't strong enough to move the machine, and at the same time I was turning to the left, in a westerly direction."

"I saw the truck coming and the position he was coming in I figured if I would swing to the left I would get out better than if I got hit straight from the side."

"He was astraddle of the black line."

"Oh, I would judge about one hundred and fifty feet from us, and maybe not quite that far."

This witness further testified that the truck did not reduce its speed before colliding with the front end of his car; that his car was standing still on the south side of the slab and no part thereof was north of the center line; that the truck carried his car down the roadway about sixty-one steps before it came to a stop.

Appellants assert that the evidence of plaintiff and her husband was contrary to physical facts, inherently impossible and of no probative value. The theory of appellants can best be understood by quoting from the brief where they discuss the evidence of plaintiff's husband. Note what is said:

"Thus this witness testifies that when the truck was 150 feet away coming at forty miles, he drove his automobile a distance of eleven feet to a point three feet on the highway at three miles an hour. As the reduction of miles per hour to feet per second is approximately one and a half times the miles per hour, approximately two and a half seconds elapsed while he drove that...