Knorr v. Wells

• Citation: 270 S.W. 391
• Decision Date: 03 March 1925
• Docket Number: No. 18893.,18893.
• Parties: KNORR v. WELLS.
• Court: Court of Appeal of Missouri (US)

270 S.W. 391

KNORR v. WELLS.

No. 18893.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

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

"Not to be officially published."

Suit by Arthur Knorr against Rolla Wells, receiver of the United Railways Company of St. Louis. Verdict for plaintiff. From order granting defendant new trial, plaintiff appeals. Judgment reversed and remanded, with directions to set aside order granting new trial and reinstate verdict.

W. H. Douglas, of St. Louis, for appellant. Charles W. Bates, T. E. Francis, and John F. Evans, all of St. Louis, for respondent.

DAVIS, C.

This is an action for damages for personal injuries suffered by plaintiff while riding in an automobile driven by his father, which, it is alleged, struck a slick and slippery street car track, down which track defendant permitted water to run, causing a dangerous obstruction in the street. The jury returned a verdict for plaintiff in the sum of $1,200; afterwards the trial court sustained the motion for a new trial, because the verdict was against the law, and because the court erred in refusing to give the jury instructions in the nature of a demurrer to the evidence offered at the close of plaintiff's case and at the close of the whole case. From the order granting a new trial plaintiff appealed.

Plaintiff's evidence tends to show that in the city of St. Louis, on south Broadway, defendant maintained north and south bound tracks, operating a street railway system over them; that abutting Broadway on the west defendant maintained car barns; that to the west of the south-bound tracks defendant maintained in Broadway a switch track, running generally parallel with the north and south bound tracks, and intersecting the south-bound tracks at a point just south of the car barns; that defendant maintained a water plug on the Broadway side of the car barns, to which on the morning in question was attached a small hose inserted in a barrel, from which water ran to the street, down the switch track to the intersection of the switch track with the southbound track, where, or just south of the switch track, it formed a small pool; that the grade in front of the car barns runs slightly down toward the south; that on August 7, 1921, between 7:30 and 8 a. m., with the condition of Broadway dry, a Ford car driven by plaintiff's father, in which plaintiff was riding in the front seat, proceded southwardly along Broadway and approached the switch track at a speed of about 10 miles an hour; that defendant permitted water to run from the water plug down the rail of the switch track, which made a slight turn to the southeast; that, when the automobile hit this switch track, it skidded and forced the car to the left or east side of Broadway, where it hit the curb, causing it to overturn, and throwing plaintiff through the windshield; that the point where the wheels of the Ford car hit the east rail of the switch track and began to skid is about 15 feet north of the intersection of the switch track and the south-bound track; that the rails from the skidding point to the switch were filled with water enough to cover the groove; that the water would get as far as the switch forming a little pool; that the water caused the skidding.

Defendant's shed foreman testified, in substance, that they turned the water on and let it run to wet the switches, so the cars may go around the curve easily, and to keep the sand and dirt out of it; that they did that whenever the cars are going out, morning and evening and afternoon, every day; that he saw this accident on the morning of August 7th after the Ford upset, and he saw the Ford coming down the street; that he saw the Ford car coming down the southbound track, maybe 60 or 100 feet away; that he did not lose sight of it until he heard something, something caught, then he looked around and saw it heading for the curbstone; that it was going 25 or 30 miles an hour; that he heard something pop, and when it got to this switch he saw him over on the curbing, hit the curbstone and over.

Such further facts, if any, as are pertinent will later appear.

I. Plaintiff complains of the action of the trial court in sustaining the motion for a new trial. "

Defendant contends that the verdict is so unworthy of belief, so utterly impossible, that the new trial motion could and should have been sustained on the ground that the verdict is against the evidence, invoking the rule that the order will not be disturbed on appeal if the court's action can be sustained on any ground in the motion. Defendant supports his contention by citing Roseman v. Railways (Mo. App.) 251 S. W. 104; Ray v. Railroad (Mo. App.) 232 S. W. 268; Spohn v. Railroad, 87 Mo. 74; and Schmitt v. Standard Oil Co. (Mo. App.) 221 S. W. 389. He states his argument thus:

"Plaintiff's entire brief consists of an attack on Judge Hall's opinion that it is not negligent to allow water to flow from private premises to a public street. While we heartily agree with Judge Hall's statement that, if it is negligent to allow water to stand in the groove of a car rail, then the flood gates are open to all kinds of speculative litigation; we do not believe it is either necessary or proper for this...