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

• Decision Date: 06 June 1910
• Citation: 129 S.W. 1055,145 Mo. App. 1
• Parties: RICHTER et ux. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

129 S.W. 1055

145 Mo. App. 1

RICHTER et ux. v. UNITED RYS. CO. OF ST. LOUIS.

Springfield Court of Appeals. Missouri.

June 6, 1910.

Rehearing Denied July 7, 1910.

1. APPEAL AND ERROR (§ 854)—REVIEW—ORDER GRANTING NEW TRIAL—GROUNDS.

On appeal from an order granting a new trial on the ground that the verdict is against the weight of evidence and that the trial judge erred in overruling demurrer to the testimony, the first ground will be disregarded as inconsistent with the second.

2. CARRIERS (§ 316) — STREET RAILWAYS — DEATH OF ALIGHTING PASSENGER—BURDEN OF PROOF.

In an action for the death of a passenger struck by a street car after he had alighted, the burden was on the plaintiff to show that the car struck decedent, that the accident occurred where passengers boarded and alighted from cars, and that the car striking him was running in excess of the limit provided by ordinance, and failed to sound a gong, and that the excessive speed caused the injury and death.

3. CARRIERS (§ 318) — STREET RAILWAYS — DEATH OF PASSENGER — CIRCUMSTANTIAL EVIDENCE.

Liability of a street car company for death of a passenger struck by a car may be shown by circumstantial evidence.

4. EVIDENCE (§ 587)—CIRCUMSTANTIAL EVIDENCE —REQUISITES.

Where circumstantial evidence is relied upon, the circumstances must be consistent and must tend in a substantial way to support the party's claim.

5. CARRIERS (§ 320) — STREET RAILWAYS — DEATH OF PASSENGER—JURY QUESTIONS.

In an action against a street railway company for death of a passenger who had just alighted from a car, evidence held sufficient to go to the jury on the question whether he was struck and injured by a car running at an excessive speed and whether a gong was sounded.

6. DEATH (§ 58)—STREET CAR PASSENGERS —DEATH—PRESUMPTION.

A passenger killed by a street car is presumed, in the absence of proof to the contrary, to have used ordinary care for his own safety.

7. NEGLIGENCE (§ 122)—CONTRIBUTORY NEGLIGENCE —NECESSITY FOR PROOF.

Contributory negligence cannot be considered unless there is proof tending to show it.

8. NEW TRIAL (§ 26)—NECESSITY FOR MOTION —EXCEPTIONS.

A trial court may of its own motion, review its own errors and set aside the verdict, without motion therefor, for prejudicial error, and hence a new trial may be granted for improper remarks by the trial judge not excepted to.

9. NEW TRIAL (§ 21)—CONDUCT OF JUDGE.

In an action against a street railway company for death of a passenger, the trial court did not abuse its discretion in setting aside a verdict for the plaintiff on the ground of the judge's remarks, in the presence of the jury in passing on demurrer to the testimony, that where one is in the act of violating an ordinance or statute making certain acts negligent per se, and another is injured at the time, negligence is presumed and a prima facie case is made; that, to put it in the nature of a criminal statement, whether there was sufficient proof of the corpus delicti to take the case to the jury, the judge had serious doubt; that a proposition of that kind could not always be determined with absolute certainty; and that the facts and circumstances surrounding the case made it a question whether it was not a proper jury question.

10. APPEAL AND ERROR (§ 977)—JUDICIAL DISCRETION.

Exercise of the trial judge's discretion in granting a new trial will not be reversed, unless he has made a mistake in construing the law or has abused his discretion.

Appeal from St. Louis Circuit Court; Matt. G. Reynolds, Judge.

Action by Paul Richter and wife against the United Railways Company of St. Louis. From a judgment awarding defendant a new trial on verdict for plaintiffs, plaintiffs appeal. Transferred from the St. Louis Court of Appeals. Affirmed.

A. A. Paxson, for appellants. Boyle & Priest, Morton Jourdan, and T. E. Francis, for respondent.

COX, J.

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 7 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 eyewitness 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 $5,000. 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: "(1) The remarks of the court in the presence of the jury, in passing upon defendant's instruction in the nature of a demurrer to the evidence were prejudicial to defendant. (2) The verdict of the jury is against the weight of the evidence. (3) The court erred in refusing defendant's instruction offered at the close of plaintiffs' case."

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. Stockyards 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. Stockyards 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 eyewitness 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...