Little v. Manufacturers Ry. Co.
| Decision Date | 19 December 1940 |
| Docket Number | No. 25373.,25373. |
| Citation | 145 S.W.2d 497 |
| Parties | LITTLE v. MANUFACTURERS RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William B. Flynn, Judge.
"Not to be reported in State Reports."
Action by Silas Little against the Manufacturers Railway Company, to recover damages for personal injuries sustained by the plaintiff as the result of the collision of one of defendant's locomotives with a truck which was parked in front of the plaintiff's home, and from which plaintiff was removing kindling and putting it into the basement of his home. From an order sustaining plaintiff's motion for new trial after a verdict for defendant, the defendant appeals.
Order affirmed, and cause remanded.
Nagel, Kirby, Orrick & Shepley, of St. Louis, for appellant.
John T. Sluggett, Jr., of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action to recover damages for personal injuries sustained by plaintiff as the result of the collision of one of defendant's locomotives with a truck which was parked in front of plaintiff's home at 1529 South Second Street, in the City of St. Louis, and from which he was removing kindling and putting it into the basement of his home through a basement window.
The truck was parked at an angle to the southeast, with the right rear wheel against the curb and the rear of the body protruding back over the sidewalk, while the front of the truck was on or near defendant's railroad track, which was laid on the surface of the street. The house, which stood upon the west side of the street, abutted upon the inner line of the sidewalk; and plaintiff, at the time, was standing on the sidewalk at the rear end of the truck, which extended within a very few feet of the basement window.
Defendant's southbound locomotive was running backwards at a speed of about six miles an hour, pulling a string of some thirteen freight cars, which were coupled to the front of the pilot.
The engineer testified that from his position in the cab, he first took notice of the truck when the locomotive was still three hundred feet away, but thinking that he would clear the truck, took no steps to avoid a collision until he was within twenty feet of the truck, when he applied the brakes, but without avail, the end of the footboard catching the truck and moving the front end around, as the result of which, according to plaintiff's version of the facts, the rear end was caused to strike him in the lower part of the back, throwing him to the sidewalk, and producing the injuries for which he has sought to be compensated in this proceeding.
The sole issue of negligence upon which the case was submitted was whether the engineer saw or should have seen and appreciated the existing situation in time thereafter to have stopped the locomotive before it collided with the truck
Upon the trial of the case, a verdict of nine jurors was returned in favor of defendant. Thereafter the court sustained plaintiff's motion for a new trial upon the ground that the verdict was against the weight of the evidence; and from the order so entered, defendant's appeal to this court has been taken and perfected in the usual course.
Defendant's sole assignment of error is that the court ruled improperly in sustaining the motion for a new trial.
Upon a former trial of the case, there was a verdict and judgment for plaintiff, from which defendant appealed to this court, where the judgment was reversed and the cause remanded upon the ground of error in having submitted the case upon the theory of negligence on defendant's part in having failed to constantly sound the bell of the locomotive as required by an ordinance of the City of St. Louis whenever any steam locomotive is being moved within the limits of the city. The basis for the reversal was the insufficiency of plaintiff's evidence to have made a submissible case upon such issue as against the engineer's positive testimony that the bell had been kept constantly ringing from the time that the train had been started up two blocks away from the point of the collision. Little v. Manufacturers Ry. Co., Mo.App., 123 S.W.2d 220.
However, it was specifically held in that opinion that there was a question for the jury upon the other issue submitted — that of whether the engineer, in the exercise of due care, ought to have discovered that the locomotive would collide with the truck and likely injure persons working about it, in time thereafter to have stopped the locomotive before its collision with the truck.
It is well settled that the trial court has the discretion to grant one new trial in a given case upon the ground that the verdict was against the weight of the evidence, and that its exercise of such discretion will not be interfered with by the appellate court so long as there was substantial evidence adduced which would...
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... ... 1026, 104 S.W. 2d ... 297; Yuronis v. Wells, 322 Mo. 1039, 17 S.W. 2d 518; ... Lindsey v. Vance, 337 Mo. 1111, 88 S.W. 2d 150; ... Little v. Manufacturers Ry. Co., (Mo. App.) 145 S.W ... But, ... the insuperable difficulty with the appellant's basic ... argument, ... ...
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Sawyer v. Winterholder
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