Schmidt v. Allen
| Decision Date | 08 July 1957 |
| Docket Number | No. 45841,No. 1,45841,1 |
| Parties | William SCHMIDT, an infant, by Eugene Schmidt, Next Friend, Respondent, v. Gertrude H. ALLEN, Appellant |
| Court | Missouri Supreme Court |
Carter & Fitzsimmons and Lee M. Carter, Clayton, for appellant.
Val Terschluse and Strubinger, Tudor, Tombrink & Wion, St. Louis, for respondent.
Action for $100,000 damages for personal injuries sustained by plaintiff, a four year old child, when he was struck by defendant's automobile near the center of Big Bend Boulevard in St. Louis County. Verdict and judgment were for defendant, but the trial court set aside the verdict and granted plaintiff a new trial on the ground that the verdict was against the weight of the evidence, was contrary to the law and evidence and because of error in the giving of an instruction. Defendant has appealed from the order granting plaintiff a new trial.
Defendant-appellant here contends that plaintiff failed to make a submissible case for the jury; and that the court abused its discretion in setting aside the verdict and granting a new trial. Appellant says that there was no substantial evidence to sustain a verdict for plaintiff; and that defendant's motion for a directed verdict, as offered at the close of all the evidence, should have been sustained.
In determining whether the trial court properly exercised its discretion in awarding a new trial on the ground that the verdict was against the weight of the evidence, a discretionary ground, we must examine the record to ascertain if there was sufficient substantial evidence to justify the submission of plaintiff's case to a jury. If plaintiff failed to make out a submissible case, the order granting a new trial to plaintiff, after verdict for defendant, would be arbitrary and an abuse of the court's discretion. Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 828.
Plaintiff's cause was submitted to the jury on both primary and humanitarian negligence. The assignments of primary negligence submitted in the conjunctive were as follows: (1) failure to drive as close to the right-hand side of the highway as practicable; (2) failure to keep a lookout ahead and laterally; (3) operating the automobile at an excessive and dangerous rate of speed under the existing circumstances; (4) failure to swerve the automobile to the right to avoid striking plaintiff; and (5) failure to sound a timely warning signal of the approach, proximity and movement of the automobile. The assignments of humanitarian negligence, also submitted in the conjunctive, were (1) failure to sound a timely warning and (2) failure to swerve to the right to avoid striking plaintiff.
In order to determine the issues presented we shall review the evidence in a light most favorable to plaintiff and we shall disregard defendant's evidence unless it aids the plaintiff's case. Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295, 297; Wapelhorst v. Lindner, Mo.Sup., 269 S.W.2d 865, 870(6).
Plaintiff was struck and injured by defendant's automobile between 2:00 and 3:00 p. m., on August 20, 1955. It was a clear, hot, dry day. The collision occurred on Big Bend Boulevard near its intersection with Alicia Avenue. Big Bend is a paved highway, four lanes in width and, at the scene of the collision, is 40 1/2 feet wide and extends north and south. The nearest intersection to the south on the east side of Big Bend was Bruno Avenue 256 feet south of Alicia Avenue.
On the day in question plaintiff and his brother Bobbie were with their parents, who had been shopping at a grocery store at the northwest corner of the intersection of Alicia and Big Bend. The Schmidt family automobile was parked on the east side of Big Bend, facing north and some 28 feet south of the north line of Alicia, which street did not extend east of Big Bend. There were no other automobiles parked on the east side of Big Bend north of the Schmidt automobile.
Plaintiff and his brother and their mother and father left the grocery store and started east across Big Bend to return to the family automobile. They started across more or less abreast, with the father on the south, then Bobbie, then the mother, then plaintiff. The father was carrying a box of groceries and the mother had hold of Bobbie with her right hand and plaintiff with her left hand. The family was crossing Big Bend at the intersection corner. There was also evidence that they were crossing 'in front of the store' or 'approximately 10 to 15 feet north' of the intersection of Alicia and Big Bend. About this time defendant was operating her automobile north on Big Bend in the west one of the two northbound lanes. Her automobile was east of the center line of Big Bend. There were no vehicles immediately in front of her and her view ahead was unobstructed. Plaintiff's father looked south and saw defendant's automobile approaching and about half way between him and Bruno Avenue, which avenue was approximately 256 feet south of Alicia. The southern stop sign on Bruno at its intersection with Big Bend was approximately 389 1/2 feet south of the place where the Schmidt family were crossing Big Bend. When plaintiff's father saw defendant's automobile approaching, he came to a stop on the center line of Big Bend, and so did the other members of his family and all were standing abreast, with plaintiff on the north end of the line, as stated. When plaintiff's father first saw defendant's automobile, its left side was within a foot or two of the center line of Big Bend. Other evidence tended to show that, when defendant's automobile was 40 feet south 'from these people,' the left side of the automobile was 'approximately six inches from the center line'; and that it did not change its course prior to the time that the left front bumper of the automobile struck the plaintiff (who had made one step forward) and threw him into the air. Plaintiff fell 30 feet further north, and just east of the center line of the street, and sustained severe injuries. Defendant's automobile came to a stop about 65 feet north of the point of collision. As stated, there was nothing to obstruct defendant's view as she drove north on Big Bend from the Bruno intersection to the point of collision. There was other evidence tending to show that the left side of defendant's automobile, as she approached the point of collision, was within 'a foot or two', 'approximately a foot or half a foot', 'about three feet' from the center line. Considered favorably to plaintiff, the jury could find that defendant was driving with the left-hand side of her automobile within six inches of the center line of the highway as she approached and undertook to pass the four persons standing abreast at the center line of Big Bend. The automobile 'came quite close to' plaintiff's father.
The evidence further tended to show that defendant was operating her automobile at a speed of 25 to 30 miles per hour; that she did not slacken speed or slow down prior to striking plaintiff; that she did not sound a warning or blow a horn or swerve her automobile prior to the impact; and that plaintiff was wholly oblivious of the approach of defendant's automobile. Plaintiff still had hold of his mother's hand or was holding to her dress, but had taken one step over the center line when he was struck by defendant's automobile. There seems to be no question but that plaintiff was over the center line, facing east, when the automobile struck him.
On the theory that they constituted admissions against interest, portions of defendant's deposition were read in evidence. Defendant had testified that she was operating her automobile at the time of the collision in question; that she did not know how close the left side of her car was to the center of Big Bend; that she did not 'think' there were cars parked on the east side of Big Bend; that she did not blow her horn, did not swerve and did not apply her brakes, but continued in a straight course up to the moment of the impact; and that she first saw the child out of the left window of her automobile.
Defendant testified in her own behalf that, as she approached the place of collision, she saw the Schmidt family, She didn't see any one east of the center line. She didn't know how far she was from the group when she first saw them of how close the left side of her automobile was to the center line of the street. She didn't blow any horn. She didn't apply her brakes, or slacken speed or swerve before the collision, but continued straight along.
The applicable rules of law were well stated by this court in Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 937, as follows: ...
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