DocketNumber： 42697
Judges： Van Osdol Coil, Hyde, Hollingsworth, Dalton, Gonkling
Filed Date： 10/13/1952
Status： Precedential
Modified Date： 10/19/2024
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 [695] tinder Sec. 510.290. (Unless otherwise indicated all statutory references are to RSMo 1949, V. A. M. S.) The trial court ordered a $7500 remittitur, overruled defendant’s motion for judgment, overruled’ defendant’s new trial motion "in all respects,” and, alternately if plaintiff failed
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.) 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. 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 on 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.) 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 Air-motive, supra.
Had defendant been granted a new trial on all issues, defendant would have had no right of appeal. Vendt v. Duenke, (Mo. App.)
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 the 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. [696] 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 cither 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 southbound 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
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 1CK-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 streetcar does not prevent him from therafter 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, [697] that plaintiff was oblivious and intended to continue into the streetcar’s path, and thereby was in imminent peril. Wilkerson v. St. Louis Public Service Co., (Mo) 243 S. W. 2d 953, 955. The duty of the instant streetcar operator to act arose upon reasonable appearances of obliviousness. Silver v. Westlake, (Mo.) 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
The operator said he watched plaintiff walk (how fast, the operator did not know, but plaintiff did not run); he saw plaintiff wave when he was “about the center of the northbound tracks” and the streetcar was about 25' away; plaintiff had reached the last rail when he was struck, in fact, he was even a “little bit east of it” and “just a matter of another foot or foot and a half, there wouldn’t have been any accident. * * * Q. When you were back a half a block, did you know an accident was going to happen ? A. No, sir. Q. Why did you apply your brakes just as hard as you could and start ringing your bell? A. Well, you never know what might happen. Q. Was that why you did it? A. That’s why I do it all the time. Q. Is that why you did it on this occasion? A. Yes, sir.” The streetcar was stopped within 12/ after the collision; plaintiff was knocked due east and was lying on Broadway, parallel with the rear (center) exit door.
■Defendant contends that, while there was evidence of stopping distances at various speeds, “there was a total failure of proof of the ability of the defendant to slacken the speed of its streetcar and avoid the collision after plaintiff came into a“ position of imminent peril.” Defendant says that the zone of imminent peril “did not and could not have commenced until plaintiff was unable, by his own efforts, to stop short of the path of the approaching streetcar * * * until plaintiff was within one step of the (west) overhang of the streetcar, * * * 4%' west of the west (first) rail of the
“Just when one, under the evidence in any particular case, comes into and is in a position of imminent peril is a question for the jury to determine.” Harrington v. Thompson, (Mo.) 243 S. W. 2d 519, 525. In the instant case, while the imminent peril zone is very narrow, the jury could have reasonably found that that zone began at some point west of the streetcar’s west overhang.
Assn-ming that the jury believed that the imminent peril zone began, as contended by defendant, 4%' west of the west rail, plann tiff made a submissible case as to failure to slacken. This is not a case wherein the operator’s first view of plaintiff pedestrian was when the latter suddenly darted into the path of the moving vehicle and the collision could not have been avoided. Johnson v. Hurck Delivery Service, 353 Mo.. 1207, 187 S. W. 2d 200; Young v. St. Louis Public Service Company, No. 42,255, 250 S. W. 2d 689, decided July 14, 1952. Or where the operator, with an unobstructed view, failed to observe the apparently oblivious pedestrian moving toward the vehicle’s path and apparently intending to continue. Wright v. Osborn, 356 Mo. 382, 201 S. W. 2d 935. Here, the experienced operator admitted that he first saw plaintiff when the streetcar was 150' away; saw him start across the loading zone toward the place where passengers boarded northbound cars; saw him walk due east toward the northbound tracks without again looking toward the streetcar, and watched him walk “from that first step till the time the accident happened”; he saw plaintiff start across when the streetcar was 150' away and began to ring the bell “to give him a warning that I was coming along there,” and to push
Walking about 3' a second, plaintiff reached the point of imminent peril 4yz' west of the first rail, in about 3 seconds. He was in imminent peril during the next 3 seconds while he was walking* the approximately 10' to the last rail.- At 25 m.p.h., the streetcar, was 109.98' away 3 seconds before the impact. Allowing for reaction time % of a second (defendant’s evidence), the streetcar was 82.48' away 2% seconds before the impact. Plaintiff needed only oi a second to clear the streetcar’s east overhang. If the streetcar had been y3 of a second or 12.22' away when plaintiff stepped over the last rail, he would have been, out of danger. The jury could, without resort to speculation and conjecture, reasonably infer that in those 2% seconds and 82.48', after plaintiff was in imminent peril, the speed of the streetcar could have been slackened sufficiently to have been 12.22' away when plaintiff was stepping over the last rail.
Upon the evidence of both parties, this is an “almost escaping case.” Evidence, either direct or circumstantial,' is necessary that, in the time and space available, the speed of the streetcar could have (not “might have”) been sufficiently slackened to have enabled plaintiff to have emerged from the imminent peril zone. Hunt v. Chicago, M. St. P. & P. R. Co., 359 Mo. 1089, 225 S. W. 2d 738, 741. “However, it is at the same time recognized that there %re many situations where the facts speak for themselves without the aid of expert evidence, as where the evidence shows that the plaintiff’s vehicle had but barely failed to get in the clear before the occurrence of the collision, so that only the least additional time would have enabled the plaintiff to make his escape. Sometimes, as in this case, it may be that there was no opinion evidence to show the precise amount of slackening possible within the time and distance available, while in other cases, the record may be lacking in opinion evidence upon the question of the amount of time that would have been required for.the plaintiff’s vehicle to have been driven clear of [699] the approaching train. But in whichever respect definite evidence may be lacking, if it none the less appears that but-an instant more would have taken the plaintiff out of danger, and that the slightest slackening of the speed of the train would have been enough to have prevented the collision, the whole situation may afford substantial evidence from which the jury may be entitled to find, without resort to speculation and conjecture, that the failure to slacken the speed of the train was the proximate cause of the ensuing injury.” Woods v. Kurn, (Mo. App.) 183 S. W. 2d 852, 856. Contrast Steuernagel v. St. Louis Public Service Co., 357 Mo. 904, 211 S. W. 2d 696, 698.
We hold that plaintiff made a submissible case on failure to slacken.
Defendant next contends that plaintiff’s Instruction No. 2 was erroneous in two particulars. The instruction was (the italics are ours) :
“The court instructs the jury that under the law of the State of Missouri governing this case, it was the duty of the defendant’s operator to exercise ordinary care in the operation of the streetcar at the time and place mentioned in evidence; therefore, if you find and believe from the evidence that on the occasion in question plaintiff was crossing the defendant’s double set of tracks at the place mentioned in evidence, and that while crossing said tracks the plaintiff\ became and was in a position of imminent peril and danger of being struck and injured by defendant’s northbound streetcar mentioned in evidence, and if you further find that the operator of said streetcar saw, or, in the exercise of ordinary care, could have seen the plaintiff in such position of imminent peril, and if you further find that thereafter, by the exercise of ordinary care and with the means and appliances then at hand, and with safety to himself and his passengers, the said operator could have slackened the speed of said streetcar and thus and thereby have avoided striking- the plaintiff, if so, and if you further find that the operator thereof failed to exercise ordinary cafre to slacken the speed of his said streetcar and was negligent, and that such negligence, if any, directly caused said streetcar to strike plaintiff whereby plaintiff received injuries mentioned in evidence, if so, then your verdict mist be in favor of the plaintiff and against the defendant, St. Louis Public Service Company, a corporation, and this is true even though you may further find that the plaintiff, himself, was negligent in going upon the track over which such streetcar was being operated at the time and place in question.”
We overrule the defendant’s assignment as to the language first italicized — that it erroneously authorized the jury to find that plain
However, we sustain defendant’s assignment that the portion of Instruction No. 2 last italicized “does not relate back [700] to the preceding part of the instruction so as to require a finding that the failure to slacken occurred after imminent peril arose.” See the dissenting opinion in White v. Kansas City Public Service Co., (Mo. App.) 140 S. W. 2d 711, 713. Plaintiff concedes that in Harrow v. Kansas City Public Service Co., (Mo.) 233 S. W. 2d 644, and White v. Kansas City Public Service Co., 347 Mo. 895, 149 S. W. 2d 375, a similarly worded instruction was held prejudicially erroneous because it permitted the jury to consider the defendant’s antecedent negligence. (We note that the instant instruction hypothesizes the failure of the operator “to exercise ordinary care” to slacken speed as the proximate cause of plaintiff’s injuries; and that the instruction fails to require a finding that the operator did in fact fail to slacken speed and that such failure was the proximate cause of the injuries.)
However, plaintiff says, the error here was cured by other instructions, given at defendant’s request, which defined “imminent peril” and which directed a defendant’s verdict upon the hypothesization that “at the time plaintiff entered a position of imminent peril, it was then too late for the operator, in the exercise of ordinary care, with the means and appliances at hand, consistent with the safety of the passengers * * * to have slackened the speed and thus and thereby have avoided striking the plaintiff.” Such instructions did not cure the error in Instruction No. 2, plaintiff’s only instruction purporting to cover the whole case and directing a plaintiff’s verdict. It contained the positive misdirection that plaintiff could recover for defendant’s antecedent negligence, irrespective of plaintiff’s contributory negligence. And such misdirection cannot be cured by an instruction given by defendant. State ex rel. Long v. Ellison, 272 Mo. 571, 199 S. W. 984, 987. See again Harrow v. Kansas City Public Service Co., supra. And contrast Wright v. Osborn, 356 Mo. 382, 201 S. W. 2d 935, 940. And, as in Harrow v. Kansas City Public Service Co., supra, the instant circumstances differ from those in Larey v. Missouri-Kansas-Texas R. Co., 333 Mo. 949, 64 S. W. 2d 681, cited by plaintiff.
We need not rule defendant’s assignment as to “verbal instructions.” If not waived by defendant’s failure to make timely
The trial court’s order granting a new trial on the damages issue was the equivalent to a holding that the amount of the verdict was against the weight of the evidence, a matter in which the trial court has a wide discretion; we do not weigh the evidence; our duty here, viewing the evidence most favorably to defendant (i.e., in a light most favorable to sustension of the trial court’s ruling) is to determine whether the trial court abused its discretion in ordering the $7500 remittitur. Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S. W. 2d 426, 431.
Plaintiff, a 28 year old laborer, had been in good health and physical condition. He had passed a physical examination for the job he had held for 3years before the accident. Plaintiff said that: he was knocked unconscious and “came to his senses” 5% days later in' the hospital; he had pain in his head, back, right shoulder and right leg, and was unable to see out of his right eye; he was in the hospital two weeks and then was confined to his bed at home (length of time not stated); he could not go back to work for 9 or 10 months; during that time he had pain in his back, leg and shoulder, but these were all “healed up” at trial time though “his back and shoulder still hurt when he exerted himself”; his head still hurts when he “gets hot, throbs and pains me kind of ‘::= * *. I have dizzy spells, don’t last any longer than 3 or 4 minutes, something like that, but the headaches last sometimes 30 minutes to an hour or more * * *. I have the headaches probably 3 or 4 times a day * * * the dizzy spells don’t come too often — when ! exert myself and get hot * * * or when I am bending over and move my head from side to side * * * and I have more dizzy spells in hot weather * * '* I am nervous * # * and its late at night before I can rest” (sleep).
There was no conflict in the medical evidence that: Plaintiff remained unconscious [701] for 5% days; he sustained bruises on his head, back, right shoulder and right leg, and that he had fully recovered from these minor injuries (at the trial, plaintiff’s counsel stated that plaintiff was not making any claim that these injuries were permanent) ; he sustained: (a) An optic atrophy and complete and permanent loss of sight in the right eye (with a moderate strabismus and accompanying loss of depth perception) ; (b) a fracture of the temporal bone on the right side (above the right eyebrow) ; and (c) a brain concussion.
The sharp conflict in the medical testimony was as to the seriousness of the concussion. All of the doctors had examined plaintiff at various times. In the opinion of plaintiff’s doctors, the concussion was severe enough to, and did, damage the brain cells and thus cause the headaches and dizzy spells, and plaintiff would suffer
When injured, plaintiff was earning $57.60 a week. He was un: able to work for 9 or 10 months after the accident. For the first 13 weeks, he received $30 per week from group insurance. Sometime during that 9 or 10 months, plaintiff spent 3 months completing a training course under the “ G-. I. Bill of Rights ’ ’; apparently he was paid $145,5 during those 3 months. Thereafter, he was refused employment by his former employer because he could not pass a physical examination. He then went to work for the" company for which he was working at trial time; no physical examination was necessary; he- usually worked 5 days a week, sometimes 5%, and his average weekly earnings were $32. His work consisted of removing cardboard boxes from a machine and stacking them.
There was no evidence that plaintiff had incurred any hospital bills. He had incurred doctors’ bills but, except in one instance ($25 each for 2 examinations and $200 for time in testifying), the amounts thereof were not shown.
Plaintiff’s loss of earnings to trial time was undisputed. In his brief, he computes these lost earnings at approximately $2500'. Defendant does not challenge that figure.
As stated, the existence and permanency of plaintiff’s injuries, other than those to his right eye, were squarely challenged. As to some of these other injuries, the only evidence was plaintiff’s own testimony. He testified as to symptoms which were subjective only and all medical expert opinions were based upon the assumption that plaintiff had dizzy spells and headaches. The trial court observed plaintiff and the doctors and heard them testify. • See Nix v. Gulf, Mobile & Ohio. R. Co., 362 Mo. 187, 240 S. W. 2d 709, 714. The trial court, in a position to test the credibility of the witnesses and to weigh the evidence, could well have doubted that plaintiff actually experienced such spells' and such headaches, or believed that plaintiff had accentuated both their frequency and their severity. The trial court was not required to accord full weight to plaintiff’s testimony. See Steckdaub v. Sparks, (Mo.) 231 S. W. 2d 160.
We believe that, under our decisions, $25,000 is not excessive. In 1930, this court held that $30,000 was, and $20,000 was not, excessive for the loss of sight in one eye (coupled with permanent injury to the other eye and impaired hearing in one ear). Cunningham v. Doe Run Lead Co., (Mo.) 26 S. W. 2d 957. And in 1947, we held that $40,000 was, and $30,000 was not, excessive for the loss of sight in one eye (coupled with “remote possibility” of removal of the injured left eye “which may affect the right eye to some extent,” and “especially the item of loss of earning capacity”). Meierotto v. Thompson, 356 Mo. 32, 201 S. W.. 2d 161, 168. See 25 C.J.S., Damages, Sec. 198, p. 977, and Annos.: 46 A.L.R. 1230,, 1282; 102 A.L.R. 1125, 1258; and 16 A.L.R. 2d 3, 130. Viewing the evidence in the light most favorable to upholding the action of the trial court, we may not say that such evidence affords reasonable and substantial support for the trial court’s order of remittitur. See Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S. W. 2d 426, 431, 432.
Under Sec. 512.160, we may “award a new trial or partial new trial * * * or give such judgment” as the trial court “ought to have given, as to the appellate court shall seem agreeable to law. Unless, justice requires otherwise the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears.” As Instruction No. 2 was prejudicially erroneous, defendant is entitled to a new trial as to its liability. And plaintiff is entitled to have set aside the order granting a new trial on the damages issue. ‘And, as we have ruled adversely to defendant its contentions as to excessiveness of verdict, and as defendant does not claim that the error in Instruction No. 2 ‘affected the damages issue, we should not award a new trial on that issue. See Brown v. Reorganization Inv. Co., 350 Mo. 407, 166 S. W. 2d 476, 484; Woods v. Chinn, (Mo. App.) 224 S. W. 2d 583, 587.
Therefore, the order granting a partial new trial is reversed and the causeas remanded with directions: To set aside, in its entirety, the judgment entered on the verdict; to reinstate the verdict as to
The foregoing opinion by Lozier, C., is adopted as the opinion of the court.