Sawyer v. Winterholder
| Decision Date | 08 July 1946 |
| Docket Number | 39623 |
| Citation | 195 S.W.2d 659 |
| Parties | Jack Sawyer et al., Respondents, v. Ralph Winterholder, Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of Jasper County, Civil Appeal, Judge Woodson Oldham
Affirmed
Jack and Georgia Sawyer sought, in this action, to recover the sum of $10,000.00 for the death of their son, Herbert, who was eight years old at his nearest birthday. Herbert died as the result of injuries received when the bicycle upon which he was riding was involved in a collision with the defendant's, Ralph Winterholder's, Lincoln automobile on the 9th day of October, 1943. Herbert and his sister Joyce Ann, who was almost nine at her nearest birthday, and a neighbor child, Billy Gates, had been to visit Herbert's grandmother. It was twilight and they were on their way home on their bicycles, traveling east on Fifteenth Street in Joplin, Herbert riding ahead, with Joyce Ann a short distance behind "toting" or "pumping" Billy. The bicycles were on the right or south side of the pavement. In passing Mr. Bridges' "old coupe" as they traveled west on Fifteenth Street Mr. Winterholder's car struck Herbert's bicycle. After Mr. Winterholder stopped his car on the south side of the pavement the bicycle was underneath the front wheel and bumper of the car and Herbert was lying about thirty feet from the car and five or six feet south of the pavement. There were skid marks on the pavement from Mr. Winterholder's car for a distance of about sixty feet. Upon the plaintiffs' hypothesization of the defendant's liability, under the circumstances, in driving in the south lane of traffic and permitting his automobile to cross from the north to the south side of the pavement, on excessive speed and failure to keep a lookout for other traffic upon the highway while overtaking and passing another car, the Jury returned a verdict for the defendant.
The plaintiffs' motion for a new trial contained, among other assignments, the charge that "The verdict of the jury is and was against the great weight of the evidence, and of all the evidence; was for the wrong party, and could not have been arrived at by any proper consideration of the evidence." The trial court's order sustaining the plaintiffs' motion for a new trial recites, among other reasons, that the motion "is sustained for the reason that the verdict is against the greater weight of the evidence." Accompanying and following the trial court's order the court dictated into the record what the appellant designates as "The memorandum of the trial court filed with the order overruling the motion" but which is entered in the record immediately following the order under the heading "Reporter's record." The memorandum, dictated by the trial judge, states that the plaintiff's motion for a new trial was sustained 'for the reason that the verdict of the jury, in the opinion of the court, is against the weight of the testimony." The memorandum then sets forth the reasons the court thought the verdict against the weight of the evidence. In substance the court was of the opinion, under the evidence, that the defendant was negligent in driving at a high and dangerous speed. The court thought that the evidence with reference to skid marks and the testimony of the children - some of which the court thought had been erroneously excluded - showed excessive speed. The court was of the further opinion that the defendant's testimony as to his speed, twenty-five to thirty miles an hour, was not supported by the physical facts and was, therefore, entitled to but slight weight.
The appellant-defendant, being fully aware of the force and effect of the trial court's order setting the jury's verdict aside as against the weight of the evidence, (Mo.R.S.A., Secs. 1168, 1169; Civil Code of Mo., Sec. 847.115; Davis v. Johnson, (Mo.) 58 S.W. 2d 746, 748; Gottschalk v. Wells, (Mo.) 274 S.W. 399) seizes upon the trial court's memorandum and ingeniously contends that the court did not sustain the motion upon the assignment that the verdict was against the weight of the evidence but in fact sustained the motion upon the erroneous assumption that the defendant's evidence was contrary to the physical facts and, therefore, unbelievable. The appellant then seeks to point out that the court was in error in viewing the evidence as contrary to the physical facts and in thinking the children's evidence as to speed admissible. In this connection it is urged that the fact of the automobile's skidding is not evidence of negligence and that the children were not competent witnesses and, therefore, there were no disputed facts upon which the court could grant a new trial as the question, in those circumstances, would be one of law, or in another view, arbitrary, as there would be no evidence to weigh. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W. 2d 297; Yuronis v. Wells, 322 Mo. 1039, 17 S.W. 2d 518; Lindsey v. Vance, 337 Mo. 1111, 88 S.W. 2d 150; Little v. Manufacturers Ry. Co., (Mo. App.) 145 S.W. 2d 497.
But the insuperable difficulty with the appellant's basic argument, ingenious as it is, is that the trial court's order, which is the sole and only official repository for the court's thoughts...
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