Opinion
No. 42449.
March 10, 1952. Motion for Rehearing or to Transfer to Court En Banc Denied April 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, MICHAEL J. SCOTT, J.
Baker reis, St. Louis, for appellant.
Barnhart Wood, C. V. Barnhart and Marvin S. Wood, all of St. Louis, for respondent.
On the afternoon of March 5, 1948, a car driven by Charles Riggs collided with a car driven by James T. Dowdell on U.S. Highway 61 at a point about two miles south of Canton, Missouri. Plaintiff Marguerite Dowdell was a passenger in the car driven by her husband, James T. Dowdell, and was injured as a result of the collision. She filed this suit against Riggs to recover damages. While the suit was pending, Riggs died and the case was revived in the name of his administrator, Joseph N. Hassett. A trial resulted in a verdict for the defendant. The trial court sustained plaintiff's motion for new trial on the ground "that the verdict is against the evidence." Defendant appealed. Plaintiff asked for $10,000, hence appellate jurisdiction is vested in this court.
Defendant urges that there was no substantial evidence introduced to support a verdict for plaintiff and, therefore, the trial court erred in granting a new trial. RSMo 1949, § 510.330, V.A.M.S., authorizes a trial court to grant one new trial on the ground that the verdict is against the weight of the evidence. Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 237 S.W. 779, 782 (1); Gray v. City of Hannibal, Mo.Sup., 29 S.W.2d 710, loc. cit. 713 (11, 12); Riche v. City of St. Joseph, 326 Mo. 691, 32 S.W.2d 578, loc. cit. 579 (2, 3); 5 C.J.S., Appeal and Error, § 1568, p. 435.
The only question for our determination is whether the record contains substantial evidence to sustain a verdict for plaintiff. The case was submitted to a jury on a charge of negligence that defendant "failed to keep it (car) as close to the right hand side of said highway as practicable, * *." Plaintiff testified she was "trying to change the program on the radio, and I was in bent position." "The first thing I noticed was tenseness drawing me to the floor, and my husband tooting the horn and saying, `I hope he gets over.'" "The next thing I remember was waking up at Quincy in the hospital, the emergency ward."
Plaintiff's husband testified that he and his wife were on their way to St. Louis; that as they were driving south in the west lane of Highway 61 at a speed of about 45 to 50 miles per hour, he noticed the defendant's car coming north partly in the west lane of the roadway; that at the time of collision all of defendant's car was in the west lane; that at the moment of the collision he felt the steering wheel spin counterclockwise, or to the left. The evidence was that after the collision both cars were on the east side of the pavement. Plaintiff's car was facing northeast and the defendant's car was facing north. There was a narrow space between the two cars. Plaintiff was found lying on the pavement in this space. Plaintiff's husband testified that "Both cars were straddle across the center line, both cars were parallel to each other, and both cars were facing in northeasterly direction." The deposition of Charles Riggs, the driver of the north-bound car, was taken and read in evidence. In this deposition, Riggs testified that he noticed plaintiff's car when it was "a couple hundred feet" away; that it was in the west lane, the proper lane; that his (Riggs') car was at that time partially in the west lane due to a strong wind blowing from the east; that he jerked his car back into the east lane, and shortly before the collision plaintiff's car suddenly swerved toward the east into the east lane and there came into collision with Riggs' car.
W. A. Horn, a deputy sheriff, a witness for the defendant, testified that he arrived at the scene of the accident shortly after its occurrence; that he noticed tire marks about 18 feet in length on the pavement south of the point where the wreckage was and that for the greater part of the distance one of these marks was to the west of the center line of the road. This evidence supported, to some extent, plaintiff's case. We are of the opinion that the evidence was sufficient to require a submission of the case to a jury.
The record contains substantial evidence to support the verdict for the defendant. We need not state such evidence because in view of the trial court's ruling, the vital question before us is whether the record contains evidence sufficient to support a verdict for plaintiff.
The defendant insists in the brief that plaintiff's evidence of how the accident happened is "opposed to physical laws and common knowledge and is so inherently disbelievable as to demonstrate its own falsity and for this reason it does not constitute substantial evidence supporting plaintiff's right to recover." Defendant cited Benton v. St. Louis-San Francisco R. Co., Mo.Sup., 182 S.W.2d 61, loc. cit. 63; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160, loc. cit. 161, and other cases.
The evidence claimed to be disbelievable by appellant is that plaintiff's husband testified he was driving his car at the time of the accident in a southerly direction at the extreme west edge of the pavement and that the Riggs car was coming north on the wrong side of the road and at the time of the impact was angling in a northwesterly direction across the highway where it struck plaintiff's car at the right front side. It is argued that this was physically impossible; also that the location of the cars after the impact and the point of damage on the two cars clearly indicated that Riggs' car was not driven in a northwesterly direction across the roadway. There is some merit in the defendant's contention. It is evident that some of the evidence of plaintiff's husband was contrary to human experience and common sense. If the Riggs car was going north and the plaintiff's car south and, if, before the collision, the Riggs car turned left and crossed over to the west lane against plaintiff's car, the impact would not be against the right front of plaintiff's car. However, plaintiff's husband testified that the Riggs car as it was coming north was over the black or center line of the highway. Riggs admitted he was driving for a time over the black line and gave as the cause a strong wind from the east. Again, the witness Horn testified that tire marks indicated the Riggs car was over the center line. The trial court may have come to the conclusion that the evidence justified a finding that Riggs was negligent in driving on the left side of the road and that such negligence was the proximate cause of the collision. If the evidence which the defendant claims is unbelievable were removed from the case, enough would remain to make an issue for a jury. Sawyer v. Winterholder, Mo.Sup., 195 S.W.2d 659, loc. cit. 662 (6).
Having concluded that plaintiff introduced sufficient evidence to justify submission of the case to a jury, we must defer to the finding of the trial court in granting a new trial.
The order of the trial court granting a new trial is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.