Stith v. St. Louis Public Service Co.

• Decision Date: 08 September 1952
• Docket Number: No. 1,No. 42697,42697,1
• Citation: 251 S.W.2d 693,34 A.L.R.2d 972,363 Mo. 442
• Parties: , 34 A.L.R.2d 972 STITH v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 693

251 S.W.2d 693

363 Mo. 442, 34 A.L.R.2d 972

STITH v. ST. LOUIS PUBLIC SERVICE CO.

No. 42697.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1952.

As Modified Oct. 13, 1952.

Motions for Rehearing or to Transfer to Court en Banc Denied

Oct. 13, 1952.

Mortimer A. Rosecan, St. Louis, Inman, Dyer, Gray & Dreher, C. O. Inman, Charles E. Gray, St. Louis, for appellant-respondent John H. Stith.

Mattingly, boas & Richards and Lloyd E. Boas, St. Louis, for appellant St. Louis Public Service Co., William H. S. O'Brien, III, St. Louis, of counsel.

LOZIER, Commissioner.

Action for damages for personal injuries. Plaintiff had a verdict and judgment for $25,000. Defendant filed its alternative motion for judgment or a new trial under Section 510.290. Unless otherwise indicated, all statutory references are to RSMo 1949, V.A.M.S. The trial court ordered a $7,500 remittitur, overruled defendant's motion for judgment, overruled defendant's new trial motion 'in all respects,' and, alternately if plaintiff failed to remit, sustained defendant's new trial motion on Specification 6 (that the verdict was excessive) and overruled the motion 'as to all other particulars.' Upon plaintiff's refusal to remit, the trial court ordered a new trial on the damages issue only. Both parties appealed.

We must first determine each party's right of appeal. 'The right of appeal is purely statutory and does not exist where not given by statute.' Koplar v. Rosset, 360 Mo. 1201, 233 S.W.2d 1, 5. The pertinent statutes are: the provisions of Sec. 512.020 providing for appeals 'from any final judgment in the case' or 'from any order granting a new trial'; Sec. 510.330 authorizing the trial court to grant a new trial to 'all or any of the parties and on all or part of the issues'.

'For the purposes of an appeal a judgment must be a final judgment and it must ordinarily dispose of all parties and all issues in the case.' Deeds v. Foster, Mo. Sup., 235 S.W.2d 262, 265. Here, there was no final judgment against defendant from which it could appeal. See Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 335, 8 A.L.R.2d 710. Construing Secs. 510.330 and 512.020 together, we believe that a trial court may, by an appropriate order, make the judgment final as to any party as to whom, or on any issue on which, no new trial is ordered; and that any party aggrieved by such a final judgment is entitled to appeal therefrom. As to appealability of a separate final judgment entered upon a verdict where a separate trial of a claim, as distinguished from an issue, is ordered, see Supreme Court Rule 3.29; 2 Carr, Mo.Civ.Proc., Sec. 860.

But where, as here, the trial court does not enter such an order and grants a new trial as to less than all parties or an less than all issues, the previously-entered-and-later-partially-set-aside judgment cannot become final. The effect of the instant order was to set aside portions of the judgment (those fixing the amount of plaintiff's damages) and to leave that issue entirely undisposed of; and to make the other portions (those relating to defendant's liability) interlocutory only. This was necessarily an interlocutory judgment--rather, an interlocutory order, see Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, 519--as to any party as to whom, or on any issue on which, the new trial was not granted. And such judgment, nonfinal as to all parties and on all issues, is not appealable. Webster v. Sterling Finance Co., 351 Mo. 754, 165 S.W.2d 688; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118.

The order first overruled defendant's after trial motion to set aside the verdict and judgment and for judgment in accordance with defendant's trial motion for a directed verdict. The overruling of such an after trial motion is not appealable. Bailey v. Interstate Airmotive, supra.

Had defendant been granted a new trial on all issues, defendant would have had no right of appeal. Vendt v. Duenke, Mo.App., 210 S.W.2d 692, 699-700. See 2 Carr, Mo.Civ.Proc., Sec. 1184, 1949 Pamphlet, p. 53. Conversely, defendant could have appealed from a judgment entered on the jury's verdict for plaintiff, if its new trial motion had been overruled in its entirety. Bailey v. Interstate Airmotive, supra.

In language, the trial court's order 'sustained defendant's motion for a new trial as to the measure of damages only, on Specification 6, * * * overruled' the motion 'as to all other particulars except as to said Specification 6,' and ordered a new trial on the issue of damages only. Actually, the order was to overruling of defendant's motion in its entirety and an order, on the court's own motion, of a new trial on a single issue under Sec. 510.330. The new trial ordered was one for which defendant had not asked in its new trial motion and one which plaintiff did not seek. Both parties appealed from the order. Sec. 512.020 provides for an appeal by an aggrieved party from 'any order granting a new trial'. We construe this language as including the instant order for a new trial as to the damages issue only. We hold that both plaintiff and defendant, as a party aggrieved by such order, was entitled to appeal therefrom.

Plaintiff's assignment of error is an alleged abuse of discretion by the trial court in ordering the remittitur. Defendant says that plaintiff failed to make a submissible case and assigns error in the giving of plaintiff's Instruction No. 2, and in the giving of 'verbal instructions.'

Below, plaintiff abandoned his case as to primary negligence and went to the jury upon humanitarian negligence in failing to slacken speed.

Plaintiff was injured on the afternoon of August 23, 1949, when he was struck by defendant's streetcar in the passenger loading zone at Broadway and Kleber. (As did most of the witnesses, we use the term 'loading zone' or 'zone' to mean the entire chat-surfaced area, approximately 105' by 23'.) The streetcar involved was 46' long and had an overhang of 1'5"'. On the west side of the loading zone is a handrail. The zone's east side is the west curb of Broadway. The zone has two sets of tracks. The southbound cars use the west tracks and the northbound cars the east. The east (in this instance, the 'last') rail of the northbound tracks is 22'6"' from the handrail. The tracks south of the zone are straight and level. To the south for 300'-400', there are no obstructions to the view of either a person standing near the handrail or of the operator of a northbound streetcar.

The evidence, viewed most favorably to plaintiff, was: Plaintiff intended to board a northbound streetcar; he stood about 2' east of the handrail talking with Johnson, who was waiting for a shouthbound streetcar; plaintiff was watching the northbound tracks; he first saw the northbound streetcar when it was two blocks to the south; he watched it approach until it was about 270'-300' away; he did not hear the streetcar bell ring at any time; he started to walk across the loading zone; he walked due east at a normal speed, did not run and did not pause; he neither looked south again nor saw the streetcar again until just an instant before it struck him; as he was between the rails of the northbound tracks, he saw some friends in an automobile on Broadway, to the northeast, and waved at them; as he was stepping over the last rail, he 'glanced at the streetcar, but it wasn't any use, I couldn't go forward fast--east fast enough, and I couldn't go back and so it just had me between the rails'; the streetcar struck his head, right shoulder, right side and right leg.

Plaintiff and other witnesses, including several streetcar passengers, estimated the streetcar's speed variously between 20-45 m. p. h. Other than the streetcar operator, witnesses for both parties said that the speed was not slackened until the emergency brakes were applied, simultaneously with or an instant before the collision; and that the bell was not rung until the emergency brakes were applied. The streetcar stopped within 10'-15' (12' according to the operator) after the collision, with plaintiff's body parallel with the center exit door.

The evidence as to plaintiff's obliviousness was substantial. While he knew that the streetcar was approaching the loading zone, it was undisputed that he did not again look to the south and that he did not see the streetcar again until he was stepping over the last rail. 'In the case at bar, although plaintiff had a general awareness of the approach of the streetcar, there was evidence upon which the jury properly could find that he was not aware of the danger from the approach of the oncoming streetcar. This vital difference has been recognized in the decided cases.' Brungs v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 81, 84. 'But the fact that the plaintiff once saw the street car does not prevent him from thereafter obliviously coming into a position of imminent peril and if all the other elements of the doctrine are made to appear he is entitled to a submission of his case under the humanitarian doctrine.' Marczuk v. St. Louis Public Service Co., 355 Mo. 536, 196 S.W.2d 1000, 1002.

Plaintiff's obliviousness and his consequent peril alone did not make a submissible case under the humanitarian doctrine. The defendant is not liable unless the operator did realize, or should have realized that plaintiff was oblivious and intended to continue into the streetcar's path, and thereby was in immiment peril. Wilkerson v. St. Louis Public Service Co., Mo.Sup., 243 S.W.2d 953, 955. The duty of the instant streetcar operator to act arose upon reasonable appearances of boliviousness. Silver v. Westlake, Mo.Sup., 248 S.W.2d 628, 632.

In the instant case, there was substantial evidence from which the jury could infer that plaintiff's obliviousness and imminent peril were or should have been apparent to the streetcar operator at some time after plaintiff started across the loading zone. The operator testified: He had been defe...