Sapp v. Carman Co., Inc.
| Citation | 95 S.W.2d 658 |
| Decision Date | 15 June 1936 |
| Docket Number | No. 18572.,18572. |
| Parties | SAPP v. CARMAN CO., Inc. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Platte County; R. B. Bridgeman, Judge.
"Not to be published in State Reports."
Action by James A. Sapp against the Carman Company, Incorporated. A verdict was entered for the plaintiff, and, from a judgment granting a new trial, the plaintiff appeals.
Affirmed.
Leo A. Spalding and Thomas C. Swanson, both of Kansas City, for appellant.
James H. Hull, of Platte City, and Lawson & Hale, of Liberty, for respondent.
In this action the plaintiff seeks to recover damages for alleged injury received in an automobile accident claimed as caused by the negligence of the defendant.
The place of occurrence was in the vicinity of the intersection of Thirty-First street and Wayne avenue in Kansas City, Mo. Thirty-First street runs east and west, and is 42 feet wide from curb to curb. Wayne avenue runs north and south, and is 26 feet wide from its east curb to the property line on the west side.
On the east side of Wayne avenue there is a sidewalk extending from the property line 17 feet and on the southeast corner of the intersection of Thirty-First street and Wayne avenue is situate a storeroom occupied as a grocery by one Jammal, which store had a frontage of 29 feet fronting north on Thirty-First street. Two parallel street car tracks ran east and west on Thirty-First street, and it is 13 feet 6 inches from the south curbing in front of the Jammal store to the eastbound car track.
Prior to the accident, the plaintiff's automobile was parked in front of the Jammal store, and was facing east, and from 2 to 5 feet immediately behind plaintiff's car there was parked the Jammal delivery truck, which also was headed east.
It appears that a Mr. Ault was driving plaintiff's car. It appears further that plaintiff, after attending to some business in the grocery store, came out and entered his car and as plaintiff's car pulled out from the curb to pursue an eastern course the car was struck by a truck driven by an employee of defendant. The injury to plaintiff is alleged to have been caused by the negligence of the driver of defendant's truck in striking the car in which the plaintiff was riding.
The accident happened on December 9, 1932. Suit was filed in Clay county, Mo., circuit court on January 10, 1933, returnable to the March term of said court. A change of venue was granted to the circuit court of Platte county, Mo., and was tried before a jury in that court at the regular September term, 1934.
The trial resulted in a jury verdict for plaintiff in the sum of $2,500. Verdict was filed on September 6, 1934, and on September 8, 1934, same being in due time, defendant filed its motion for a new trial and at the same time filed a motion in arrest of judgment. Motion for new trial was taken up at the regular March term of the said court, and a new trial was granted by the court. From the action of the court in granting a new trial, the plaintiff duly appealed.
Opinion.This case was presented and tried solely on the humanitarian doctrine.
The plaintiff, appellant herein, makes but one assignment of error, which is as follows: "The Court erred in sustaining defendant's motion for a new trial, for the reason that the verdict was amply supported by the evidence; plaintiff's instruction correctly declared the law applicable thereto and there was no error committed in the trial of the case, and the trial court specified no reason for granting defendant's motion for new trial which is contrary to the statutes of the State of Missouri as in such cases it is provided should be done."
While it is the duty of the trial judge to specify the grounds upon which he granted a new trial, still a failure so to do cannot be made prejudicial to a litigant. In the event that no ground is stated, the appellate court will go to the record and examine as to the grounds set out in the motion for a new trial and if any of the grounds set out are sufficient the trial court will be sustained. Jones v. Reilender (Mo.App.) 67 S.W.(2d) 813.
The record shows that the first ground urged by plaintiff, appellant herein, is that: "The verdict in said cause is against the evidence, against the weight of the evidence and against the law under the evidence."
The fourth ground urged is that: "The court erred in overruling the demurrer to the evidence offered at the close of plaintiff's case."
According to the evidence, the appellant's car, at the time of the collision, was pulling out from the curb where the car was parked and heading in a northeasterly direction. The most favorable evidence for plaintiff is that the car had pulled out from 18 inches to 2 feet from the curb when the collision occurred.
The car is shown...
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