Schmitt v. Standard Oil Co.

• Citation: 221 S.W. 389
• Decision Date: 04 May 1920
• Docket Number: No. 16033.,16033.
• Parties: SCHMITT v. STANDARD OIL CO. OF INDIANA.
• Court: Missouri Court of Appeals

221 S.W. 389

SCHMITT v. STANDARD OIL CO. OF INDIANA.

No. 16033.

St. Louis Court of Appeals. Missouri.

May 4, 1920.

Rehearing Denied May 27, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Joseph L. Schmitt against the Standard Oil Company of Indiana. Judgment for plaintiff, and defendant appeals. Affirmed.

Nagel & Kirby, of St. Louis, for appellant. W. Paul Mobley, of St. Louis, for respondent.

BIGGS, C.

Defendant appeals from an adverse judgment for $800 in a negligence case, making the sole contention that the story as detailed by plaintiff and his witness was so improbable and Contrary to the physical facts as to fail to establish a prima fade case of negligence, and hence the court erred in putting the case to the jury. Defendant does not say that there was no evidence, but that there was no credible evidence to sustain the verdict.

The rule asserted by defendant and established in this state is that, while juries must weigh evidence and trial judges must revise their findings and appellate courts are reluctant to interfere with verdicts on the ground of insufficient evidence, still a verdict rendered at a first trial, based on evidence which seems improbable and contrary to physical facts, may be set aside by the appellate court. Spohn v. Missouri Pacific Railway, 87 Mo. 74; Payne v. Railroad, 136 Mo. 562, 38 S. W. 308; Hook v. Railroad, 162 Mo. 569, 63 S. W. 360; Nugent v. Milling Co., 131 Mo. 241, 33 S. W. 428; Baker v. Stone-braker, 36 Mo. 338; Whitsett v. Ransom, 79 Mo. 258; Walton v. Railway, 49 Mo. App. 620; Glick v. Railway, 57 Mo. App. 97; Sexton v. Railroad, 245 Mo. 254, 149 S. W. 21; Spiro v. Transit Co., 102 Mo. App. loc. cit. 250, 76 S. W. 684; McClanahan v. Railroad, 147 Mo. App. loc. cit. 409, 126 S. W. 535.

The question to determine is whether the facts in the instant case bring it within the rule as laid down in these cases.

The case is bottomed upon the alleged negligence of the driver of defendant's truck in allowing or permitting it to collide with plaintiff's automobile as both were proceeding westwardly on Locust street in the city of St. Louis, thereby causing injury to plaintiff and his motor car.

Plaintiff and his brother-in-law, who was with him In the machine at the time, testified that they were driving westwardly on Locust street, between Garrison and Compton avenues, where there is a slight down grade toward the west, when on account of the congestion of the traffic they were compelled to stop in about the middle of the block; that plaintiff slowed down his car, giving the required signal that he was going to stop by holding out his right hand, his automobile having a right-hand drive; that while still moving forward slowly the truck of defendant in charge of its employé struck his (plaintiff's) car from the rear, according to plaintiff, with violent force, and, according to his witness, "He rammed us in the back and pushed us forward, and it seemed as if plaintiff's machine plunged forward;" that on account of the collision the engines in both cars stopped running and both cars became stationary, plaintiff's car having been pushed forward about 6 feet in front of defendant's truck; that the front part of the radiator of defendant's truck hit the back part of the cover or top of plaintiff's machine, which was folded down and extended back over the rear of the machine some 8 or 10 inches; that as a result of the collision the wooden brace forming a framework for the top, being made of 1½×2 inch oak or hickory, was broken and cracked, and that the steel bows in, the top on the left side were bent, and the wood filling within the bows was cracked, and the celluloid in the back curtain was torn; that the jar of the collision broke the brake shoe of plaintiff's machine and put the oil pump out of commission; that at the time plaintiff was sitting in the driver's seat of the car with one hand on the steering wheel and the other extended as a signal, and that he was jerked...