Opinion
No. 28566.
February 17, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, JOHN K. REGAN, J.
Carroll J. Donohue, H. Jackson Daniel and Salkey Jones, St. Louis, for appellant.
Gragg Aubuchon, St. Louis, Michael J. Aubuchon and William R. Schneider, St. Louis, for respondent.
This is an action by Agnes Heggeman, as plaintiff, against the defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged by plaintiff to have been sustained on August 10, 1951, while she was a passenger on one of defendant's motor busses. The trial below resulted in a verdict and judgment for defendant. Thereafter, the court sustained plaintiff's motion for new trial and, from this action of the court, defendant has appealed.
Plaintiff sought recovery under the resipsa loquitur doctrine. After formal allegations and averments that plaintiff was a passenger on defendant's westbound Lindell bus, it was alleged that when said bus was near the intersection of Lindell and Whitier Streets, "said bus gave a sudden, unusual and violent jerk, jar and jolt, throwing plaintiff in, about and around in said bus, all as a direct and proximate result of the negligence and carelessness of the defendant * * * as a direct result of which plaintiff was seriously and permanently injured."
By its answer, defendant admitted its corporate existence; that it was engaged in the business of transportation of passengers for hire; and that in furtherance of said business, owned and operated a fleet of motor busses known as the Lindell line which was operated eastwardly and westwardly on Lindell Boulevard in the City of St. Louis. After said admissions, defendant, by said answer, denied generally the allegations of plaintiff's petition hereinbefore mentioned, and denied the averments of the petition with respect to the plaintiff having sustained injuries.
Plaintiff testified that she boarded defendant's westbound Lindell bus at the northeast corner of the intersection of Seventh and Locust Streets. She was on her way home at the time and intended to leave the bus at Whittier and Lindell. Whittier Street runs north and south and is one short block west of Sarah Street. On the occasion in question, the bus was stopped by its operator at Sarah Street and, as it thereafter was caused to start forward, plaintiff arose, intending to alight at Whittier Street, the next intersection. As plaintiff arose, the bus gave a sudden jerk which threw plaintiff to the floor. Plaintiff testified that the jerk was, "Well, hard enough to knock me down. I fell back. * * * I would say it is the worst jerk I ever had on a bus."
Plaintiff of thereafter alighted from the bus at Whittier Street. She stated that as she was getting off, the bus operator inquired of her, "Did you hurt yourself?" and that she replied: "Well, I don't know whether I did or not." She stated that the bus driver did not take her name and that she did not secure the bus driver's badge number. She stated: "I was so embarrassed when I fell in front of those people that I walked out of there." She stated, however, that she observed the number of the bus, but did not write it down until she got home. She had forgotten the number of the bus at the trial, and was unable to produce the paper on which she had written it.
According to plaintiff's testimony on direct examination, the alleged accident occurred between 2:30 and 3:00 p. m. On cross-examination, plaintiff stated that she had testified in a deposition that the incident occurred about 2:15 in the afternoon, and that said testimony was correct. Plaintiff arrived home about three minutes after leaving the bus. About four o'clock that same day plaintiff called the office of the St. Louis Public Service Company on the telephone and talked to "one of the girls there. * * * I told her I would like to make a complaint, that I got hurt on the bus and I would like to make a complaint." Subsequently, a claim adjuster called on her. She gave a statement to the adjuster, but did not sign it.
The day following the accident plaintiff consulted Dr. Martin W. Davis. She stated that before going to the doctor's offices she experienced considerable pain in the lower part of her back, and in the back of her head. She stated that Dr. Davis took an X-ray of the lower part of her body, and told her he would give her heat treatments. She further testified that she saw Dr. Davis about eighteen times and that "he treated me with that heating treatment for so many times and he told me that was about as much as he could do for me and I had to take hot baths and use the hot water bottle myself. He said I could do that myself. * * * He didn't give me any medicine, I don't think." When asked how she felt at the present time, plaintiff replied: "Well, when I sit down, it hurts me to get up. I have to set down so slow, and I get up and down slow."
Plaintiff was seventy-four years of age at the time of the trial. She further testified:
"Q. Are you feeling pain at the present time? A. Well, a little bit. I always have a little bit back there.
"Q. Does this pain come upon you at any particular time? A. Well, when I set down or get up it always does."
Dr. Davis testified that he first saw plaintiff on August 11, 1951. He stated that "she was complaining of pain in the lower back and in the coccyx, and I made an examination and found the coccyx to be tender and we made an X-ray of the coccyx bone and we found that there was no fracture of the coccyx, but apparently she did have a bruise, and we treated her with diathermy on that day. She came back to the office several times for diathermy treatments and she continued to have pain in the coccyx, * * * sometimes after bruises to the coccyx it is seen and it is a rather persistent pain, lasts much longer than a pain from the ordinary bruise. * * * There were no objective signs * * * that is, it couldn't be seen. You couldn't tell that she had a bruise simply by looking at it. * * * I made an examination and the remainder of the spine seemed to be perfectly all right. She had good motion in the spine and she had no particular tenderness in the lumbar spine and the sacrum, but she did have a marked tenderness of this coccyx bone on pressing on it; it was very tender, and I made a rectal examination and examined the coccyx bone from the inside and it was very tender there. It was not displaced, it was in its normal position, but it was very tender. * * * we gave her diathermy treatment, and we gave her prescriptions for drugs to ease the pain. * * * I have seen her four or five times since that time, but she has been in my office for diathermy treatments when I did not see her, the nurse simply gave her the treatment and would let her go. * * * I think she does have pain in the coccyx bone as a result of this injury. * * * I will have to say she may have permanent injury." In response to a hypothetical question, the witness testified that there was a casual connection between the accident and the injury to plaintiff's coccyx.
On cross-examination, Dr. Davis testified that there were no objective symptoms of injury; that tenderness of the coccyx was revealed by the plaintiff's complaint on applying pressure to the coccyx. The doctor could see no injury, and the X-rays revealed none.
Edward J. Barks testified on behalf of defendant that he was a schedule maker in the employ of defendant. He stated that the company's trip cards indicated that busses westbound on Lindell Boulevard would arrive at Sarah Street on the date of the alleged incident at 2:05, 2:07, 2:13, 2:20 and 2:25 p. m., respectively. The trip cards for the busses involved did not reveal that any unusual incidents had occurred at the time and place in question, and did not reveal that busses were late at any stage of their trip.
William E. Williamson testified on behalf of defendant that he was the assistant general superintendent of automotive equipment for defendant and was in charge of maintaining and caring for all busses in operation. He stated that bus No. 3252 was one of a hundred purchased in 1947 and was equipped with a Diesel engine and a hydraulic transmission, having no shift lever and no clutch pedal; that these busses cannot be started with a jerk by jamming down on the accelerator; that these busses have a rear wheel drive and start in motion by the rear wheels moving; that power is transmitted from the engine to the rear wheels through oil, and there is no mechanical attachment between the power plant and the blades, hence jamming down on the accelerator will not start the bus with a jerk; that busses 3422, 3437, 3273, 3255 and 3438 are all equipped with this hydraulic equipment.
Defendant placed on the witness stand the drivers of all westbound Lindell busses which were scheduled to cross Sarah Street between 2:05 and 2:25 p. m. on the day in question. Each of said witnesses testified that on that particular day nothing unusual occurred, and that they were not approached by an elderly lady complaining of having fallen.
Dr. John Patrick Murphy testified on behalf of defendant that he examined plaintiff during November of 1951; that plaintiff told him she had fallen in a bus during August and had injured her tailbone, and that her tailbone continued to hurt her when she sat on it for any length of time. At the time of Dr. Murphy's examination plaintiff had no complaints except with respect to the area over the tailbone. Dr. Murphy's examination revealed no injury or difficulties on plaintiff's part, and he stated that the tailbone was freely movable.
Plaintiff requested, and the court gave, an instruction submitting the case to the jury under the res ipsa loquitur theory. For the defendant, the court gave an instruction directing a verdict for defendant in the event the jury found that the bus did not jerk, jar and jolt in a violent, unusual and extraordinary manner.
Plaintiff, in her motion, urged a new trial for the following reasons:
"1. Because the verdict is against the evidence.
"2. Because the verdict is against the weight of the evidence.
* * * * * *
"5. Because the verdict is for the wrong party and should have been for the plaintiff.
* * * * * *
"10. Because prejudicial error was committed in that defendant's counsel in his closing argument stated: `I could have given you a much better demonstration how a bus cannot jerk by any pressure on the gas pedal, because I had the bus down there on Eleventh Street waiting, sitting down there ready to be tested, and Mr. Aubuchon objected in a very quiet voice — whereas such evidence had been previously excluded by the Court, such argument being calculated to influence, prejudice and inflame the jury against plaintiff, outside of and beyond the scope of the evidence, untrue and an attempt by defendant's counsel to have an unfavorable inference drawn against plaintiff because of the Court's own action."
The Court, in sustaining plaintiff's motion for new trial, declared that it did so "upon the first and tenth grounds thereof, which are as follows, towit." The first and tenth grounds of said motion were then set out in the court's order.
Appellant assigns as error the action of the trial court in granting plaintiff a new trial on the ground that the verdict was "against the evidence". In support of this contention, it is urged: first, that said ground is a meaningless generality and therefore not a sufficient reason for granting a new trial within the meaning of Section 510.330 RSMo 1949, V.A.M.S., which provides that every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted; and second, construing the order as a ruling that the burden of proof was upon defendant, which it had failed to sustain, thereby entitling plaintiff to a verdict as a matter of law, the court was in error and its action should be reversed.
The respondent contends that the trial court, by the language used, meant to sustain said motion on the ground that the verdict was against the weight of the evidence, and having sustained the motion on said ground, the ruling cannot be disturbed on the ground of abuse of discretion, since plaintiff made a case for the jury on all issues.
We cannot sustain the contention of appellant that the words "against the evidence". as used in the court's order, are a meaningless generality and therefore not in compliance with the provisions of Section 510.330, supra.
Under the ruling of our Supreme Court in Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, and Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, it is our opinion that we must, from the record before us, ascertain the meaning intended by this rather ambiguous language, and rule the validity of the court's action in the light of the intended meaning of the words used.
It will be observed that in plaintiff's motion for new trial there was a specific assignment that the verdict was against the weight of the evidence. The court did not sustain the motion on this ground, but, in effect, overruled said assignment when it sustained the motion on other grounds. Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; Kersten v. Hines, 283 Mo. 623, 223 S.W. 586. Therefore, if we are to hold that the trial judge, by saying that the verdict "was against the evidence", meant that it was "against the weight of the evidence", we convict him of saying in one breath that the verdict is against the weight of the evidence, and in the next breath that it is not. From a consideration of the record in this case, we do not feel compelled to defer to the ruling of the trial court on the theory that the judge intended to say that he had weighed the evidence and found that it preponderated in favor of plaintiff.
So far as the particular assignment under discussion is concerned, we find that the motion for new trial was sustained on the ground that, under the evidence, defendant was not entitled to a verdict as a matter of law. Such reason for the court's ruling could only be based upon an erroneous view of the proper rules of law governing in res ipsa loquitur cases. The issue of defendant's negligence was a jury question. Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471.
Respondent has cited several cases in support of her contention, but none of them compel a result different from what we have heretofore announced. In each case cited the problem presented was the ascertainment of the intent of the trial court as expressed in the order. In Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, and Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746, it clearly appears from the orders that the trial court in each case intended to sustain the motions on the ground that the verdicts were against the weight of the evidence. In neither case did such a ruling convict the trial court of inconsistency.
In O'Shea v. Pattison-McGrath Dental Supplies, Inc., 352 Mo. 855, 180 S.W.2d 19, and Stegner v. Missouri-Kansas-Texas R. Co., 333 Mo. 1182, 64 S.W.2d 691, the Supreme Court held that an order in each case sustaining a motion for new trial on the ground of inadequacy of the verdict was equivalent to ruling that the verdict on the issue as to the amount of damages was against the weight of the evidence.
Carnie v. Toll, Mo.Sup., 281 S.W. 41, 43, is also cited and relied on by respondent. In that case the Supreme Court (Div. 2) held that an order of the trial court sustaining a motion for new trial on the ground that "the judgment was without evidence to support it", should be construed as ruling that the verdict was against the weight of the evidence, although the motion for new trial contained a specific assignment that the verdict was against the weight of the evidence. This case, however, was expressly overruled by the Supreme Court (en banc) in Gates v. Dr. Nichols' Sanitorium, 331 Mo. 754, 55 S.W.2d 424.
In addition to the cases cited by counsel, we have examined many other cases construing order's granting new trials, but fail to find any controlling decision which compels us to sustain respondent's contention. It is further urged that the trial court erred in granting plaintiff a new trial on account of the alleged prejudicial argument of defendant's counsel.
Defendant placed on the stand Mr. William E. Williamson, assistant general superintendent of automotive equipment for defendant, who testified that the busses used on the Lindell line all had hydraulic transmissions and, for that reason, it was impossible to start the busses with a jerk. He testified:
"It is a General Motors, Diesel engine, with a hydraulic transmission. It has no shift lever or no clutch pedal. It operates similar to the dynaflow Buick, that is, the power of the engine turns a rotary wheel in the transmission and that pumps oil against another set of blades and that in turn gradually starts the drive shaft turning and into the rear end and rear wheels. We transmit power through the force of oil in the transmission. * * * No mechanical connection between the engine pump wheel and the final drive.
"Q. Can one of those hydraulic busses be started with a jerk by jamming down on the accelerator? A. No, it can't."
The witness had with him a device, which he called a "mock-up", with which he demonstrated to the jury how the hydraulic transmission in question operated.
Thereafter, defendant sought to introduce in evidence bus No. 3252, one of the busses which defendant operated on its Lindell line, and requested permission to have its operation demonstrated to the jury. The court sustained plaintiff's objection to this offer. Later, during the argument of defendant's counsel, the following alleged improper argument occurred:
"Mr. Williamson devised this mock-up in an attempt to show you how it can't jerk from a start. It can start faster or slower, but can't jerk. This shows you how the wheels are driven from the rear end. I could have given you a much better demonstration how a bus cannot jerk by any pressure on the gas pedal because I had the bus down there on Eleventh Street, waiting, sitting down there ready to be tested, and Mr. Aubuchon objected, in a very quiet voice —
"The Court: Is there an objection?
"Mr. Aubuchon: Yes, there is an objection, and a request to admonish him and to instruct the jury to disregard any statement he might make in regard to my objections.
"The Court: The objection is sustained; the jury will disregard it, and Mr. Gerhard, you will not comment upon the court's ruling on the exclusion of that evidence, and the jury will not take it into consideration at the time that they deliberate on the case. Anything that you are ordered not to consider you must not consider or take into consideration at the time you are deliberating on this case. Proceed.
"Mr. Gerhard: I am sorry. * * *"
A trial court, in passing on a motion for new trial, has a discretion with respect to questions of fact, and matters attecting the determination of issues of fact. But, despite this wide latitude allowed the trial court in such matters, it must not arbitrarily exercise its discretion, but must have some good and compelling reason or reasons to sustain its action. A trial court is never justified in setting aside a verdict except for error prejudicial to the losing party. State ex rel. Missouri Mutual Association v. Allen, 336 Mo. 352, 78 S.W.2d 862; Stark v. St. Louis Public Service Co., Mo.App., 211 S.W.2d 500.
In the case at bar, the court promptly sustained the plaintiff's objection to the alleged improper argument. The court also complied with the request of plaintiff's counsel that the jury be instructed to disregard said argument. Plaintiff's counsel was at the time satisfied with the court's action, for he made no request that the jury be discharged. It further appears that the argument complained of was not of the kind likely to inflame the minds of the jury and create a prejudice which could not be eradicated by the court's charge to disregard it.
In our opinion, it cannot be reasonably said that plaintiff was prejudiced by the remarks of counsel for defendant. Such being the case, the trial court erred in granting a new trial on the basis of the ground assigned. McDonald v. Heinemann, Mo.App., 141 S.W.2d 177; Wilkinson v. Wilkinson, 222 Mo.App. 1244, 8 S.W.2d 77; Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 125 A.L.R. 674.
For the reasons stated, it follows that the order of the Circuit Court sustaining plaintiff's motion for new trial should be and is hereby reversed and the cause remanded with directions to the Circuit Court to reinstate the verdict of the jury and to enter judgment thereon.
BENNICK, P. J., and IVAN LEE HOLT, Jr., J., concur.