Payne v. Reed

• Decision Date: 16 March 1933
• Docket Number: 30437
• Citation: 59 S.W.2d 43,332 Mo. 343
• Parties: Mrs. Joseph H. Payne v. W. D. Reed, Appellant
• Court: Missouri Supreme Court

59 S.W.2d 43

332 Mo. 343

Mrs. Joseph H. Payne v. W. D. Reed, Appellant

No. 30437

Supreme Court of Missouri

March 16, 1933

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge.

Affirmed.

Lathrop Crane, Reynolds, Sawyer & Mersereau, Winston H. Woodson and Sam D. Parker for appellant.

Plaintiff failed to make a case for the jury, therefore the trial court had no authority to grant plaintiff a new trial and this court should reverse and remand the case with instructions to reinstate the verdict and to enter a judgment thereon for defendant W. D. Reed. Sutter v. Met. Street Ry. Co., 188 S.W. 65; Foley v. Harrison, 233 Mo. 508, 136 S.W. 354; Smoot v. Kansas City, 194 Mo. 532, 92 S.W 393; Casey v. Transit Co., 186 Mo. 232, 85 S.W. 357; Fitzjohn v. Transit Co., 183 Mo. 80, 81 S.W. 907; Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623. The rule is also stated and applied in the following cases: Ottomeyer v. Pritchett, 178 Mo. 160, 77 S.W. 62; State ex rel. Ry. Co. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Roberts v. M. & K. Tel. Co., 166 Mo. 370, 66 S.W. 155; Gray v. City of Hannibal, 29 S.W.2d 711; Hoyland Flour Mills Co. v. Mo. Pac. Ry. Co., 5 S.W.2d 125. There was no direct evidence that deceased was struck by defendant's car. There was no testimony that defendant could, by the exercise of ordinary care, have averted the accident, nor does the record contain any facts on which an inference could be based that defendant could, by the exercise of ordinary care, have averted the accident. Bibbs v. Brady, 231 S.W. 1020; Hamilton v. Railroad, 250 Mo. 714; Miller v. Wilson, 288 S.W. 997; Baecker v. Railroad, 240 Mo. 507; Wilkerson v. Railroad, 140 Mo.App. 306; Paul v. Railroad, 152 Mo.App. 577.

Calvin, Vandeventer & Kimbrell for respondent.

(1) The plaintiff having made out a supposable, or prima facie, case; and, especially, in view of the further fact that there was no substantial countervailing testimony forthcoming on behalf of the defendant, the action of the court in sustaining her motion for a new trial, on the ground that the verdict was against the weight of the evidence, was an exercise of its sound discretion; and such action will not be disturbed on appeal. R. S. 1929, sec. 1003; Farrar v. Midland Electric Ry. Co., 162 Mo. 469, 63 S.W. 115; Foley v. Harrison, 233 Mo. 460, 136 S.W. 354; Lindsay v. Schaner, 291 Mo. 297, 236 S.W. 319; Keller v. St. Louis Butchers Supply Co., 229 S.W. 173; Gray v. Hannibal, 29 S.W.2d 710; Johnson v. Bray, 31 S.W.2d 998; Hunt v. Iron & Metal Co., 39 S.W.2d 369; Bernheimer v. Scott, 228 S.W. 523; Hogue v. St. Louis-S. F. Ry. Co., 20 S.W.2d 301; Wise v. Rubenstein, 24 S.W.2d 203; Zahner Mfg. Co. v. Harnich, 24 S.W.2d 641; Barth v. Boyer, 27 S.W.2d 499; Birdsong v. Jones, 30 S.W.2d 1096; First Natl. Bank of Zeigler v. Dunbar, 31 S.W.2d 257. (2) Moreover, the defendant's admission and testimony that he continued to drive his automobile across the intersection in question, when he was unable to see pedestrians who might be passing thereover, rendered him guilty of actionable negligence as a matter of law. State v. Miller, 234 S.W. 813; Solomon v. Duncan, 194 Mo.App. 517, 185 S.W. 1141; Ross v. Hoffman, 269 S.W. 679; Mayne v. May Stern Furniture Co., 21 S.W.2d 211; Winsor v. McKee, 22 S.W.2d 65; Lauson v. Fond due Lac, 141 Wis. 57, 123 N.W. 629, 25 L. R. A. (N. S.) 40; Raymond v. Sauk County, 167 Wis. 125, 166 N.W. 29, L. R. A. 1918F, 425; Knoxville, etc., Co. v. Vangilder, 132 Tenn. 487, 178 S.W. 1117, L. R. A. 1916A, 1111; Fisher v. O'Brien, 99 Kan. 621, 162 P. 317, L. R. A. 1917F, 610; Philadelphia, etc., Ry. Co. v. Dillon, 114 A. 62, 15 A. L. R. 894; Murphy v. Hawthorne, 244 P. 79, 44 A. L. R. 1397; Morehouse v. Everett, 141 Wash. 399, 252 P. 157, 58 A. L. R. 1482; Carlson v. Jonke, 234 N.W. 25, 72 A. L. R. 1352; Peasley v. White, 152 A. 530, 73 A. L. R. 1017; Harnau v. Haight, 189 Mich. 600, 155 N.W. 563; Ruth v. Vroom, 245 Mich. 88, 222 N.W. 155, 62 A. L. R. 1528; Robinson v. Mutrrick, 102 N. J. L. 22, 131 A. 67; Mivaresik v. Blank, 102 N. J. L. 231, 132 A. 251; Barnes v. Eastin, 190 Ky. 392, 227 S.W. 578; Bong v. Webster, 217 Ky. 781, 290 S.W. 662; Greenland v. Des Moines, 206 Iowa 1298, 221 N.W. 953; Filer v. Filer, 304 Pa. 461, 152 A. 567; Nikoleropoulos v. Ramsey, 61 Utah 465, 214 P. 304; 2 R. C. L. 1191; R. C. L. Perm. Supp., p. 656; 1 Blashfield's Cyclopedia of Automobile Law, p. 370. (3) Inasmuch as this cause was very properly submitted upon the humanitarian theory, the giving of the defendant's Instruction D-7 constituted prejudicial error as against the plaintiff, which could only be cured by the court's granting to her a new trial therein. Shumate v. Wells, 9 S.W.2d 632; Althage v. People's Motorbus Co., 8 S.W.2d 924; Maher v. Donk Bros., etc., Co., 20 S.W.2d 888; Faust v. East Prairie, etc., Co., 20 S.W.2d 918. (4) Furthermore, the only grounds upon which an appellate court will interfere, for sustaining a plaintiff's motion for a new trial, are errors of law, or where there is no basis in the evidence on which a verdict for the plaintiff should be permitted to stand. Haven v. Railroad Co., 155 Mo. 216, 55 S.W. 1035; Graney v. St. Louis, etc., Ry. Co., 157 Mo. 666, 57 S.W. 276, 50 L. R. A. 153; Fitzjohn v. St. Louis Transit Co., 183 Mo. 74, 81 S.W. 907. (5) The general rule is that, where the trial court considers that an error has been committed in the trial of a cause and grants a new trial, it being in possession of the facts surrounding the hearing and in a position to know the prejudicial effect of the errors complained of, the Supreme Court will seldom interfere with its rulings. Stafford v. Ryan, 276 S.W. 636; Bright v. Wheelock, 20 S.W.2d 696, 66 A. L. R. 263; Gaston v. St. Louis Pub. Serv. Co., 223 Mo.App. 766, 20 S.W.2d 559; Hayward v. Ham, 29 S.W.2d 243; Chase v. Am. Pressed Brick Co., 31 S.W.2d 246; Zimmer v. Dougherty, 32 S.W.2d 765.

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

OPINION

STURGIS

Plaintiff, as surviving widow of Joseph H. Payne, deceased, brings this action to recover damages on account of the death of her said husband by reason of the alleged negligence of defendant, W. D. Reed. The death of Joseph H. Payne is alleged to have been caused by his being struck and fatally injured by an automobile being driven by defendant. The defendant is charged with negligence in driving and operating the automobile in question. The case was tried to a jury, resulting in a verdict for defendant. A motion for new trial was thereupon filed by plaintiff and the court sustained same on two of the numerous grounds assigned, to-wit, that the verdict is against the weight of the evidence, and that the court erred in giving a certain withdrawal instruction to be noted later.

The principal question is whether there is substantial evidence of defendant's negligence as a producing cause of the accident in question, sufficient to take that question to the jury. Both parties seem to agree on the proposition that if there is substantial evidence in plaintiff's favor to take the question of defendant's negligence to the jury then this court will not interfere with the right of the trial court to weigh the evidence pro and con and grant a rehearing on the ground that the verdict is against the weight of the evidence. In their respective briefs the plaintiff stresses the affirmative part of this proposition, to-wit, that this court will not interfere with the discretion of the trial court in granting a new trial when it deems the verdict against the weight of the evidence, but concedes that this discretion is limited to cases where there is substantial evidence to sustain the verdict. The defendant stresses the negative part of the proposition, to-wit, that the trial court has no right to grant a new trial where there is no substantial evidence in plaintiff's favor to take the case to the jury. Both parties are right as to the law, as shown by the numerous authorities cited. For plaintiff we may mention Johnson v. Bray (Mo.), 31 S.W.2d 998; First National Bank v. Dunbar (Mo. App.), 31 S.W.2d 257; Hunt v. Gillerman Iron & Metal Co., 327 Mo. 887, 39 S.W.2d 369. And for defendant, Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623; Lyons v. Corder, 253 Mo. 539, 162 S.W. 606; Gray v. City of Hannibal (Mo.), 29 S.W.2d 710; Sutter v. Metropolitan Street Ry. (Mo.), 188 S.W. 65. The proposition is really a simple one and the cases are not in conflict. The granting of a new trial because the verdict is against the weight of the evidence rests on the proposition that the court has weighed the evidence in the judicial balance and found the greater weight or preponderance of same against the jury's verdict. But this, in turn, is based on the proposition that there is evidence both pro and con to be weighed -- that there is substantial evidence at each end of the balance to be weighed one against the other. If there is, it is the exclusive province of the trial court to do the weighing and its decision as to which is the heavier is final. But, on the other hand, it is the province of this court to determine on appeal here whether there is any substantial evidence in plaintiff's favor -- in plaintiff's end of the balancing scales -- the verdict being for defendant. If not, there is nothing for the trial court to weigh and it has no right to say that the weight of the evidence is against the verdict. In other words, plaintiff has no right to a new trial when the evidence in her favor is not sufficient to take the case to the jury. It is much the same question as is presented on a demurrer to the evidence, and if such a demurrer should have been granted, no new trial can be granted on this or any other ground. A failure of evidence to support a verdict for plaintiff renders a case dead...