Rosenblum v. St. Louis Public Service Co.
| Decision Date | 11 September 1951 |
| Docket Number | No. 28127,28127 |
| Citation | 242 S.W.2d 304 |
| Parties | ROSENBLUM et al. v. ST. LOUIS PUBLIC SERVICE CO. et al. |
| Court | Missouri Court of Appeals |
Robert Y. Woodward, of St. Louis, for respondents.
This is an action for personal injuries and property damage sustained by the respective plaintiffs as the result of the collision of one of defendant St. Louis Public Service Company's street cars with an automobile owned by plaintiff Morris Rosenblum, and occupied in part by his two sons and coplaintiffs, Henry M. Rosenblum and Sam L. Rosenblum.
The motorman, Paul Lubbert, was joined as codefendant with St. Louis Public Service Company.
Upon a trial to a jury, a verdict was returned in favor of both defendants. Plaintiffs thereupon filed a joint motion for a new trial, which the court sustained upon the ground that the verdict was against the weight of the evidence. In due time defendants gave notice of appeal, and by proper successive steps have caused the case to be transferred to this court for our review.
The case was pleaded and submitted upon the charge that defendant Lubbert, the operator of the street car, had carelessly and negligently allowed the street car to run into and collide with the rear end of the automobile.
Defendants answered separately, each by a general denial.
The accident happened about noon on May 29, 1948, at the Easton Avenue entrance to Sherman Park, which is located on the northwest corner of the intersection of Easton Avenue and Kingshighway Boulevard.
Easton Avenue runs generally east and west, and has double car tracks upon it, the one to the south for eastbound street cars, and the one to the north for westbound street cars.
Morris Rosenblum had given his sons permission to use his automobile on the occasion in question for the purpose of driving to Sherman Park. Henry, the older son, was the driver, while Sam sat in the front seat with him. Two other boys, Donald Donovan and James Banty, occupied the seat in the rear.
The boys turned into Easton Avenue from off of Burd Avenue, which is 5 or 6 blocks west of where the collision took place, and then started eastwardly on Easton Avenue. Nearing their destination, Henry pulled over to the left to enter the park, but found it necessary to stop his car until a line of westbound traffic had passed ahead of him. Henry estimated that he had been stopped 'maybe 5, maybe 10 seconds' when an eastbound street car in charge of defendant Lubbert ran into the rear of the automobile, striking it on the left rear corner, and swinging it around until the rear end had been pushed forward for some 5 or 6 feet.
Inasmuch as the court sustained the motion for a new trial upon the ground that the verdict was against the weight of the evidence, the question for our consideration resolves itself into one of whether there was substantial evidence to support a verdict contrary to the one returned. In other words, the situation is the same in its legal aspect as though we were reviewing the court's refusal of defendants' motions for a directed verdict. If plaintiffs made a case for the jury, the order awarding a new trial is to be affirmed, but otherwise it is to be set aside and the verdict reinstated in defendants' favor. Kopp v. Traders Gate City Nat. Bank, 357 Mo. 659, 210 S.W.2d 49; Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660; Hoefel v. Hammel, Mo.App., 228 S.W.2d 402; Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445.
In submitting the case plaintiffs hypothesized that the automobile was being driven eastwardly on defendant company's eastbound track; that the street car in charge of defendant Lubbert was behind the automobile, and was being operated in the same direction; that the automobile was brought to a stop at the entrance to Sherman Park; that the street car overtook the automobile; and that defendant Lubbert...
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