Newman v. St. Louis Public Service Co.

• Decision Date: 20 March 1951
• Docket Number: No. 28049,28049
• Citation: 238 S.W.2d 43
• Parties: NEWMAN v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 43

238 S.W.2d 43

NEWMAN v. ST. LOUIS PUBLIC SERVICE CO.

No. 28049.

St. Louis Court of Appeals, Missouri.

March 20, 1951.

Rehearing Denied April 20, 1951.

Edward W. Fredrickson, William L. Mason, Jr., St. Louis, for appellant.

Coburn, Storckman & Croft, Thomas L. Croft, and Rexford H. Caruthers, all of St. Louis, for respondent.

WOLFE, Commissioner.

This suit was brought by Marion Nickelson, against the St. Louis Public Service Company, for damages arising out of injuries, which he sustained when he was struck by one of defendant's streetcars. The jury returned a verdict for the plaintiff in the sum of five thousand dollars but the trial court ordered a new trial upon the defendant's motion. It is from the order sustaining the motion for a new trial that the plaintiff duly appealed to this court. After the appeal the plaintiff died, and upon proper suggestion of his death to this court his administratrix, Pearl Newman, was substituted as the party appellant.

The occurrence out of which the action arose took place on Broadway, in the City of St. Louis, at a point slightly north of the intersection of Salena Street. The plaintiff was a man sixty-five years old and lived at 3700 South Main Street, which is to the east of Broadway. He stated that on the morning of March 17, 1949, the day of the accident, he had been cutting wood. He returned home for lunch and, after he had eaten, he went to Broadway to buy some tobacco for himself and a bottle of wine for a neighbor. He reached Broadway and started to cross it, but he did not remember exactly where. When asked about the accident, he stated: 'I don't know; I don't know so very much. I started to go across and I got tangled up out there with the cars. I stopped for one. Any way I looked there was either a streetcar there or an automobile and I don't know whether the automobile hit me or a streetcar, because the next thing after I knowed, why, it was two or three day later when I come to myself at the hospital.'

He said that after he got out into the street he saw a car coming from the north and waited for it to pass, and when he saw the one from the south it was 'right at' him. He heard no bell sounded. He also testified that he had not been drinking before the accident, except for two bottles of beer that he had before breakfast.

A truck traveling in the same direction as the streetcar, but east of it, was being driven by a man named McCarthy, and with him was a passenger named Obrecht. Both of them were called as witnesses for the plaintiff.

Obrecht stated that the truck was going northwardly, as was the streetcar, and that the truck was about even with the center door of the car. He first saw the plaintiff when the truck driver said that a 'streetcar was nearing to hit a fellow'. At that time Nickelson was out on the track past the east rail and moving backwards toward the curb. He weaved as if he was going forward again. Obrecht said that the streetcar, when he first saw it, was about 40 or 45 feet away from the plaintiff and it was traveling at a speed of about 10 miles per hour and going up a slight grade to the north. He said that Nickelson looked like he could have been sick or drinking and that he was weaving in a stooped position back and forth on the east rail, getting about a foot to the west of it and then backing up two feet. At no time was he more than 2 feet east of the east rail, and he didn't appear to be a normal pedestrian. Obrecht did not hear any bell sounded, although there was nothing to obstruct the view of the operator of the streetcar, but he did see sparks fly from the rails as the brakes were applied 5 feet from the plaintiff. Nickelson was struck by the right front of the streetcar and after the accident he was lying in the street with one foot on the rail of the car track.

McCarthy, the driver of the truck, said that he first saw Nickelson come from between two parked automobiles and start westwardly across Broadway, but moving diagonally slightly to the north. At the time McCarthy was about to pass the streetcar, which was a hundred yards to the south of the point where Nickelson appeared. After seeing Nickelson he did not pass the car but kept the truck slightly to the rear. Nickelson seemed to be sick or drunk and walked like an old man. He stopped when he got within 5 feet of the rails, then moved forward, but he never got out on the rails or moved backwards. McCarthy said that the streetcar never changed its speed or sounded a warning. He testified that he was an old quail hunter and when he saw that the streetcar had a 'beautiful bead' on the plaintiff he said to Obrecht 'Watch the streetcar hit this man.' He said that he could see that the streetcar would hit the plaintiff unless it reduced its speed.

The operator of the streetcar stated that he first saw Nickelson when he came out from between two parked automobiles on the east side of Broadway and he walked almost to the east rail without stopping 'the first time'. He observed that he was unsteady on his feet but could not tell whether it was from drinking or whether he was a cripple. The operator also stated that after stopping near the rail, Nickelson moved back about 5 feet, and the speed of the car was reduced to 7 miles an hour, but that when it was only 5 feet from Nickelson he stepped forward toward the rail and into the side of the car. The operator also stated that he applied the brakes and stopped in 9 feet. He said that a normal stop at the speed he was traveling would take from 14 to 30 feet.

The evidence related seems to be sufficient to pass upon the points raised by this appeal, for the trial court sustained the motion for a new trial on 'ground eleven thereof'. Ground eleven states: 'The court erred in giving and reading to the jury erroneous, prejudicial, illegal, contradictory, misleading and confusing instructions on the part of and at the request of the plaintiff. The court erred in not modifying said instructions and erred in giving and reading to the jury each and every one of said instructions asked by plaintiff and erred in failing to modify each and every one of said instructions.'

The only instruction that is before us is the one that the defendant considers erroneous. Mo.R.S. 1949, Sec. 510.330, provides in part: 'Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.'

Rule 1.10, Supreme Court of Missouri, provides: 'When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent. * * *'

When a trial court grants a new trial on the grounds of erroneous instructions, under the statute and rule, it should declare what instruction it considers erroneous and state with some detail wherein the error lies. When, as here, it simply sustains the motion on broadly stated grounds, the movant is charged on appeal with the burden of pointing to the erroneous instruction and to the error which it is purported to contain. Davis v. Kansas City Public Service Co., Mo.Sup., 233 S.W.2d 669; Johnson v. Kansas City Public Service Co., Mo.Sup., ...