Lindsey v. Vance

• Decision Date: 12 November 1935
• Parties: Marie Georgia Lindsey, an Infant, by Oda B. Lindsey, Her Next Friend, v. Harvey Vance and Marie Vance, Appellants
• Court: Missouri Supreme Court

88 S.W.2d 150

337 Mo. 1111

Marie Georgia Lindsey, an Infant, by Oda B. Lindsey, Her Next Friend, v. Harvey Vance and Marie Vance, Appellants

Supreme Court of Missouri

November 12, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Max G Baron, Judge.

Affirmed.

William R. Schneider for appellants.

The record of this cause shows that a verdict for the plaintiff respondent here, could not stand, and the trial court unjustly and arbitrarily exercised its discretion in setting aside the verdict in favor of the defendants, appellants here, and in sustaining the plaintiff's motion for new trial. Payne v. Reed, 59 S.W.2d 43; Shattlock Realty Co. v. Mays, 63 S.W.2d 429. (a) The plaintiff was guilty of contributory negligence as a matter of law. Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W 1144; Savona v. May Department Stores Co., 71 S.W.2d 157; Uetz v. Skinner, 212 Mo.App. 444, 249 S.W. 651; Davis v. John Breuner Co., 140 P. 586; Bowers v. Colonial Warehouse Co., 153 Minn. 425, 190 N.W. 609; Ferrand v. Cook & Co., 83 So. 362. (b) Where the uncontradicted testimony of the plaintiff's case, as well as that of the whole case, shows that the defendants' driver did not and could not see the plaintiff before the impact or collision, then the humanitarian doctrine is not applicable, and the question then is as to whether the plaintiff was guilty of contributory negligence, as a matter of law, and if so, plaintiff cannot recover, and a motion for new trial on any ground should be overruled. Moffatt v. Link, 207 Mo.App. 654, 229 S.W. 842. (c) When the plaintiff has not made a case, then regardless of any error in the defendants' instructions, a motion for new trial should not be sustained. United Construction Co. v. St. Louis, 69 S.W.2d 648. (d) Where the testimony adduced by the plaintiff is the only evidence adduced concerning the matter in question, the plaintiff is bound thereby even though it is the testimony of the adverse party when called by the plaintiff. Schroer v. Brooks, 204 Mo.App. 567, 224 S.W. 53; Spencer v. Anderson, 229 S.W. 226; Ullom v. Griffith, 263 S.W. 876.

Berthold & Chase for respondent.

(1) The action of the trial court in granting a new trial will not be reviewed except on a showing that no verdict in favor of the party to whom new trial was granted would be allowed to stand. Security Bank of Elvins v. Natl. Surety Co., 62 S.W.2d 709; Gray v. Hannibal, 29 S.W.2d 713; State ex rel. Ry. Co. v. Ellison, 186 S.W. 1075; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886; Hunt v. Iron & Metal Co., 327 Mo. 887, 39 S.W.2d 369; Bowers v. Pub. Serv. Co., 328 Mo. 778, 41 S.W.2d 810; Payne v. Reed, 59 S.W.2d 43; Davis v. Johnson, 58 S.W.2d 746. (2) Plaintiff, having alleged in her motion for new trial that the giving of Instruction 5 and all other instructions for both defendants was error, brought said error to the court's attention, and the giving of said Instruction 5 did constitute reversible error, and the order of the trial court granting plaintiff a new trial was proper, even though the trial court did not assign the giving of Instruction 5 as a grounds for new trial. Smith v. Sears, Roebuck & Co., 84 S.W.2d 422; Barr v. Hays, 172 Mo.App. 598, 155 S.W. 1095; Graefe v. St. Louis Transit Co., 224 Mo. 250, 123 S.W. 835. (3) On charge of negligence in a civil case, plaintiff need not prove defendant's guilt beyond a reasonable doubt. Payne v. Reed, 59 S.W.2d 48; State ex rel. v. Ellison, 268 Mo. 249, 187 S.W. 23; Farber v. Boston Ins. Co., 256 S.W. 1079; Aly v. Terminal Railroad Assn., 78 S.W.2d 854; Grimes v. Red Line Service, 85 S.W.2d 767.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

Action for damages for personal injuries sustained by plaintiff a minor, who brings the action by her father as next friend. Plaintiff was injured when struck by an automobile as she was walking across Twentieth Street in the city of St. Louis. The automobile was owned by the defendant Marie Vance, who was riding in same at the time, and was driven by her brother, defendant Harvey Vance, who was driving the automobile for and in her behalf. Upon a trial in the Circuit Court of the City of St. Louis the verdict of the jury was for defendants. The trial court sustained plaintiff's motion for, and granted, a new trial specifying "of record," as grounds therefor, that "the verdict is against the weight of the evidence" and that the trial court erred in "giving defendants' Instruction No. 6." Defendants appealed from the order granting a new trial. The petition alleges and prays damages in the sum of $ 10,000, therefore our jurisdiction of the appeal.

Appellants advance the proposition here that regardless of error, if any, in their instructions there is no evidence to sustain a verdict for plaintiff and that under the evidence a verdict for plaintiff could not stand. The trial court has broad discretionary power to grant one new trial on the ground that the verdict is against the weight of the evidence and if it appears herein that a submissible case was made we would not be warranted in disturbing the action of the trial court in granting a new trial on that ground. In that event the trial court may, but the appellate court may not, pass upon the weight of the evidence. Appellants' contention therefore is directed to the sufficiency of the evidence to make a case for the jury and presents the same question that arises upon a demurrer to the evidence. We are then required to examine the record and determine therefrom whether there is any substantial evidence in plaintiff's favor. "If not there was nothing for the trial court to weigh and it had no right to say that the weight of the evidence is against the verdict;" contra if there is substantial evidence, making a case for the jury, the order granting a new trial must be affirmed. [Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; Hunt v. Gillerman Iron & Metal Co., 327 Mo. 887, 39 S.W.2d 369; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886; Bowers v. Kansas City Public Service Co., 328 Mo. 770, 41 S.W.2d 810; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746; Security Bank of Elvins v. National Surety Co., 333 Mo. 340, 62 S.W.2d 708; United Construction Co. v. City of St. Louis, 334 Mo. 1006, 69 S.W.2d 639.]

Before reviewing the evidence we look to the charges of negligence set out in plaintiff's petition. As primary negligence it is charged that defendants "violated Section 7775 of the Revised Statutes 1929" in that, they "failed to exercise the highest degree of care in operating the automobile," "failed to drive same in a careful and prudent manner and at a rate of speed so as not to endanger" plaintiff, but "drove same at a high, dangerous and excessive rate of speed" under the circumstances, and "failed to sound a signal warning of the approach of the automobile toward plaintiff." A violation of the humanitarian rule is then charged in that, defendants "saw, or by the exercise of the highest degree of care could have seen plaintiff crossing" the street "from the west to the east side and that plaintiff was in a position of imminent peril and danger of being struck and injured by the automobile . . . and that plaintiff was . . . oblivious of any danger or peril to herself, in time thereafter, by the exercise of the highest degree of care and with the means and appliances at hand on the automobile . . . to have sounded a signal warning of the approach of the automobile, . . . or to have stopped . . . diminished the speed . . . or . . . changed and diverted the course of same" and "could thereby have avoided striking and injuring plaintiff." The joint answer was a general denial and a plea of contributory negligence.

As plaintiff, a child, twelve years of age, was walking across Twentieth Street, in the city of St. Louis from the west toward the east side thereof she was struck by, or as defendants put it came in contact with, an automobile driven by defendant Harvey Vance. The accident occurred about six P. M., January 26, 1932. Defendant Marie Vance owned the automobile, a two-seated, two door, Buick coach, and was at the time riding in the back seat, sitting on the right side; her friend and guest, Miss Evelyn Flori, sat at her left. Defendant Harvey Vance sat alone, in the driver's position, in the front seat. It is admitted that Harvey Vance was driving his sister's car for her and in her service, having, at her request, called for her, with the car, at her place of work and was driving her home. Plaintiff resided with her parents. Their home was on the west side of Twentieth Street, a north and south street, forty feet in width. Montgomery Street, an east and west street, opens into but stops at the east side of Twentieth Street. Plaintiff testified that she was walking across Twentieth Street at the usual and customary place used by pedestrians, which had Montgomery Street intersected or crossed Twentieth Street would have been the north side of the intersection, that is, that she was walking across Twentieth Street along the usual path of pedestrian travel on a line with the north side of Montgomery Street and the northeast corner of Montgomery and Twentieth streets where a store was located. She was going to this store to purchase bread having been sent, by her parents, on that errand. Plaintiff testified, that before she stepped from the sidewalk, on the west side of the street, into the street: "I looked both ways" but "saw no traffic coming" from either the north or south and that "there were no automobiles parked" or standing on either side of the street; that she then stepped into the street and proceeded toward the east side walking "at an ordinary gait;" that when she reached the "middle" or "center" of the street she again looked in both...