Lorenzen v. United Rys. Co. of St. Louis

• Decision Date: 28 March 1913
• Citation: 155 S.W. 30,249 Mo. 182
• Parties: LORENZEN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

155 S.W. 30

249 Mo. 182

LORENZEN v. UNITED RYS. CO. OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

March 28, 1913.

1. APPEAL AND ERROR (§ 854) — REVIEW — REASONS FOR DECISION.

The reasons for which the trial judge granted a new trial were immaterial, if there were, in fact, good grounds for granting it.

2. APPEAL AND ERROR (§ 977) — DISCRETION OF TRIAL COURT — GRANTING NEW TRIAL.

While, under Rev. St. 1909, § 2038, the trial court's discretion in granting a new trial is reviewable, it will not be interfered with, unless manifestly abused.

3. APPEAL AND ERROR (§ 977) — DISCRETION OF TRIAL COURT — NEW TRIAL.

Appellate courts have encouraged trial courts in exercising their discretion in granting a new trial to prevent miscarriage of justice, and will reluctantly interfere with its exercise, unless exercised arbitrarily or improvidently.

4. EVIDENCE (§ 474) — OPINION EVIDENCE — SPEED OF CAR.

A witness, who saw the collision between a street car and decedent's wagon and was familiar with the running of street cars and their speed, having observed their speed while himself hauling on the streets, was qualified to give an opinion as to their speed.

5. EVIDENCE (§ 492) — OPINION EVIDENCE — SPEED.

A witness, if otherwise qualified, may give an opinion as to the speed of a street car at the time of the collision, though he did not form such opinion at the time of the accident, but several days thereafter.

6. TRIAL (§ 33) — EVIDENCE — ADMISSION.

Highly refined, metaphysical distinctions should not be indulged in determining whether evidence is admissible; too much metaphysics being bad in legal exposition.

7. EVIDENCE (§ 492) — OPINION EVIDENCE — SPEED.

Opinion evidence as to speed is of the same character as opinion evidence as to time, quantity, number, distance, etc., and is admitted for the same reasons, namely, because all of the facts cannot be readily presented to the jury.

8. APPEAL AND ERROR (§ 206) — ESTOPPEL TO ALLEGE ERROR — RULINGS ON EVIDENCE.

Where it was shown on the voir dire of a witness whose evidence as to the speed of a street car was excluded that his opinion would be that the car was running at a certain rate of speed, and his whole examination and the rulings and objections of counsel proceeded on the theory that his testimony would show a violation of the speed ordinance, appellant cannot claim on appeal that his evidence thereon was properly excluded, because not shown to have been material.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Anna M. Lorenzen against the United Railways Company of St. Louis. From an order granting a new trial after verdict for defendant, plaintiff appeals. Affirmed and remanded for new trial.

Boyle & Priest and T. E. Francis, all of St. Louis, for appellant. Edw. C. Kehr, of St. Louis, for respondent.

LAMM, J.

Plaintiff, widow of Niels A. Lorenzen, timely sued in the circuit court of St. Louis for statutory damages for his wrongful death at the hands of defendant. Verdict for defendant. New trial ordered and granted on plaintiff's motion. Defendant appeals from that order. Such strokes earmark the case.

The specifications of negligence are: (1) A violation of the "vigilant watch ordinance"; (2) the violation of an ordinance limiting the maximum speed of street cars in St. Louis at the place in hand to 10 miles per hour — both, it is alleged, having casual connection with Lorenzen's death, and both introduced in evidence. The vigilant watch ordinance has been here often. It relates to the duty of employés in charge of a going street car in St. Louis to keep a vigilant watch for those approaching their tracks, and to use diligence in stopping the car on the first appearance of danger to such persons. White v. Railroad, 202 Mo. loc. cit. 549, 101 S. W. 14. Its terms are not material to any issue here; for the court instructed on that ordinance, and the jury found for defendant on that issue. Moreover, plaintiff does not now contend the order granting a new trial can be sustained because of error in the way that issue was put to the jury. So that if we held, as we would be bounden to do, that the ratio decidendi on the motion was immaterial, if other good ground existed, it would not mend matters a whit.

The court granted a new trial for error in ruling out testimony on negligent speed. By that ruling plaintiff was left without proof of the rate of speed of the car killing her husband, and, her case breaking down on that issue, it did not get to the jury. It is obvious, therefore, that if the court erred in excluding testimony on speed that error materially affected the merits, and when later the trial court corrected that error by awarding a new trial it did excellent justice. Contra, if the court did not err in excluding such testimony, then it erred in granting a new trial because of such exclusion; the verdict for defendant should be reinstated, and final judgment thereon follow as a sequence.

The shoe pinching at that precise point and nowhere else (under the briefs on both sides), the blunt and single question on this appeal is: Was there error in excluding testimony of eyewitnesses on the speed of the car killing Niels A. Lorenzen? That question will be put in a form narrowing it very much presently, when the actual ruling below is reached.

A word more on the record, before coming to the turning question. Lorenzen was a teamster, plying his calling at the time by driving a loaded coal wagon south on Broadway in St. Louis at dusk on November 12, 1907. South of and approaching him was one of defendant's street cars propelled by electricity, in charge of defendant's employés, running on defendant's track and about defendant's business of carrying passengers for hire. We take it the point of the accident was well lighted by street lamps; that Lorenzen could see the street car (and that those manning it could see him) for a block away — there being no turn in the street or obstructions. Defendant had two tracks on Broadway, and Lorenzen was driving outside of both. O'Fallon intersects Broadway. At that intersection Lorenzen turned to cross defendant's tracks, on a line making an acute angle with the rails, to go down O'Fallon. He had got so far that his wagon was one-half over the track the car was on when it was struck about the middle by the oncoming car and he was thrown off and instantly killed; the car stopping in a few feet. There is testimony that the car was about 65 to 75 feet away when the team got on the track.

The facts and circumstances indicating that the car's rate of speed bore a causal connection to his death, plaintiff sought to prove by two eyewitnesses, O'Loughlin and Carroll, the car's speed exceeded the ordinance limit. The testimony of Carroll we put to one side on this appeal, because whether it was admissible or not is immaterial, in view of the further fact that if O'Loughlin's was admissible we ought not to disturb the order granting a new trial.

1. At the threshold lies this guiding and general proposition to quicken us, namely: Although the discretion of a trial court in granting a new trial is reviewable on appeal as the statutes read (R. S. 1909, § 2038), yet that discretion will not be interfered with, unless manifestly abused below. Such discretion has been defined as a "judicial" one, i. e., a sound discretion. It has also been defined as one to be exercised whenever, in the judgment of the trial court, an unfair advantage has been obtained at the expense of justice. It is a discretion appellate courts have encouraged trial courts in exercising to prevent a...