Richter v. United Railways Company of St. Louis
| Decision Date | 06 June 1910 |
| Citation | 129 S.W. 1055,145 Mo.App. 1 |
| Parties | PAUL RICHTER et al., Appellants, v. UNITED RAILWAYS COMPANY, of St. Louis, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
Judgment affirmed.
A. A Paxson for appellants.
(1) The first ground for sustaining defendant's motion for a new trial is not good. (a) Because no objection or exception was made to the remarks of the court at the time. (b) Because said remarks on their face were not prejudicial to defendant. If they were prejudicial to either party it was to the plaintiffs. Nall v. Railroad, 97 Mo. 75; Railway v. North, 31 Mo.App. 355; Walsh v. Drayage Co., 40 Mo.App. 399; Oberbeck v. Mayer, 59 Mo.App. 293; Dietring v. Transit Co., 109 Mo.App. 526. (2) The second ground assigned by the trial court is killed by the third ground assigned. These two grounds are held by the Supreme Court to be contradictory of each other and the appellate court will consider the case as if only the one ground, that there was no evidence, was meant. Crawford v. Stock Yards Co., 215 Mo. 394; Ordelhide v. Land Co., 208 Mo. 244; Homuth v. Railroad, 129 Mo 642. (3) The court did not err in refusing defendant's instruction for a directed verdict. Loftus v. Railroad, 220 Mo. 470; King v. Railroad, 211 Mo. 14; Moore v. Transit Co., 194 Mo. 1; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Soeder v. Railroad, 100 Mo. 673; Schereth v. Railroad, 96 Mo. 509; Keim v. Railroad, 90 Mo. 314; Steinmann v. Transit Co., 116 Mo.App. 673; Heintz v. Transit Co., 115 Mo.App. 667; Story v. Transit Co., 108 Mo.App. 424; Flori v. St. Louis, 3 Mo.App. 232.
Boyle & Priest, Morton Jourdan and T. E. Francis for respondent.
(1) The granting of one new trial rests within the sound discretion of the trial court, and its action in that regard will not be disturbed on appeal unless its power was abused. Rodan v. Transit Co., 207 Mo. 406; Seeger v. Silver Co., 193 Mo. 407; Stetzler v. Railway, 210 Mo. 711. (2) The remarks made by the court in the presence of the jury, in passing upon the demurrer, were prejudicial to the defendant in that (a) they constituted a comment on the evidence. 21 Ency. Pl. and Pr., 95, 994; 1 Blashfield's Instructions to Juries, 106; Zander v. Railroad, 206 Mo. 445; Huff v. Railroad, 213 Mo. 495; (b) and contained an incorrect statement of the law applicable to the case. Schmidt v. Transit Co., 120 S.W. 96; Bluedorn v. Railroad, 121 Mo. 269. (3) It is within the discretionary power of the court to set aside the verdict on the ground it made improper remarks, even though such remarks were not excepted to at the time. Parker v. Britton, 133 Mo.App. 273; Mill Co. v. Transit Co., 122 Mo. 258; Lowell v. Davis, 52 Mo.App. 342. (4) The demurrer to the evidence should have been sustained. Evans Brick Co. v. Railroad, 17 Mo.App. 624; Molyneux v. Railway, 81 Mo.App. 25; Warner v. Railroad, 178 Mo. 125; Schmidt v. Transit Co., 120 S.W. 96; Reno v. Railroad, 180 Mo. 469; Oglesby v. Railroad, 177 Mo. 272; Byerly v. Light Co., 130 Mo.App. 603; Goransson v. Mfg. Co., 186 Mo. 300; Graefe v. Transit Co., 123 S.W. 835; Morgan v. Mining Co., 136 Mo.App. 243.
This is an action for damages for the death of plaintiff's minor son, Paul Richter, Jr., who, it is alleged, was struck and killed by a street car, operated by defendant in the city of St. Louis.
The petition alleges that the accident which caused the death of their son, happened at Louisville and Oakland avenues, just south of Forest Park, in the southwestern part of the city of St. Louis. That on the 9th day of October, 1906, at about seven o'clock in the evening, plaintiff's son was a passenger upon one of defendant's west-bound cars, running on or near Oakland avenue, and when said car reached a point on Oakland avenue where Louisville avenue intersects said Oakland avenue at right angles, plaintiff's son caused said car upon which he was riding westwardly to stop and discharge him at said point. He then proceeded southwardly on Louisville avenue, on his way home, and, in order to do so, was compelled to cross over the south track of said railway company, on or near Oakland avenue, and, in doing so, was struck by one of defendant's east-bound cars, and received injuries from which he died on or about October 10, 1906.
On November 16, 1907, plaintiffs filed their petition, and thereafter on the 4th day of February, 1908, filed an amended petition which pleads the three-mile ordinance, failure to sound the gong, the fifteen-mile ordinance and the vigilant watch ordinance.
The court, by instruction, cut down the issues to the first alleged acts of negligence, to-wit: the violation of the three-mile limit and failure to sound the gong or ring the bell. The answer was a general denial. No eye-witness to the actual striking of the boy, by the car, was produced. At the close of plaintiffs' case defendant offered an instruction in the nature of a demurrer to the evidence which was refused. Defendant offered no evidence. Trial by jury, verdict for plaintiffs in the sum of five thousand dollars. Defendant filed a motion for a new trial, which was sustained by the court, and plaintiffs have appealed.
The reasons assigned by the court for sustaining defendant's motion for a new trial are as follows:
We notice first that the second and third grounds recited by the court as reasons for sustaining the motion for a new trial are that the verdict is against the weight of the evidence, and that the court erred in refusing to sustain a demurrer to the testimony. We shall consider these two questions together, and, in doing so, we call attention to the late decisions of the Supreme Court as to the proper procedure in the appellate court in a case in which both of these grounds are recited as grounds for sustaining a motion for a new trial.
In Gould v. St. John, 207 Mo. 619, 106 S.W. 23, a motion for new trial was sustained, and the order sustaining it recited that it was by reason of the error of the court in overruling a demurrer to the evidence, and for the further reason that the verdict was against the weight of the evidence. In discussing the questions, Division No. 2 of the Supreme Court, speaking through Judge BURGESS, said, "The court, unless it abused its discretion in so doing, had the right to grant a new trial upon either ground." Then sustained the action of the court in granting a new trial on the ground that the verdict in that case was against the weight of the evidence. In Crawford v. Stock Yards Co., 215 Mo. 394, 114 S.W. 1057, the court in sustaining the motion for a new trial recited that it was because of error in overruling a demurrer to the testimony, and because the verdict was against the weight of the testimony, as was done in Gould v. St. John, supra, and in the latter case, Division No. 1 of the court, speaking through Judge VALLIANT, held that these two grounds were inconsistent and contradictory. The one meaning that the court had weighed the evidence and found that the verdict was against the weight of the evidence, and the other meaning that there was no evidence to weigh, and then held that in such case, the appellate court would consider the case as if only the one ground, that there was no evidence to support the verdict, was meant. Gould v. St. John was decided December 10, 1907. Crawford v. Stock Yards Co. was decided December 23, 1908.
In the opinion in the Crawford case no mention is made of the former case of Gould v. St. John, but the opinion of the court in the Crawford case is in direct conflict with the opinion of the same court in the Gould case, and must be held to have overruled it, although it be not mentioned, and, as the Crawford case contains the last utterance of the Supreme Court on that question, it is our duty to follow it in this case, and hence we shall disregard the assignment that the verdict was against the weight of the evidence, and direct our attention to the demurrer to the testimony.
In determining whether the evidence was sufficient to send the case to the jury, the rules of law relating thereto are so well-settled that citation of authorities is not necessary, and may be said to be this. That the burden of proof was upon the plaintiff to show first, that the car of defendant struck and injured the deceased; second, that the injury occurred at a place where passengers got on and off the car, and that at the time of the accident, the car was running in excess of three miles per hour, and failed to sound a gong; third, that it was the excessive rate of speed at which the car was running that caused the injury.
In this case there was no eye-witness to the accident, but it is well settled that the plaintiffs may make out their case by circumstantial evidence, and the rule is that when a party relies upon circumstantial evidence, the circumstances relied upon must be consistent with each other, and, in a civil action, must tend in a substantial way to support the claim of plaintiff. In determining whether or not the circumstances proven did tend, in a substantial way, to support the claim of plaintiff, the real test to be applied is whether or not the circumstances proven make it probable and justify a reasonable inference that the injury occurred as plaintiffs allege that it did. Foster v. Missouri Pacific Railway decided by us at this term. No...
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