BOOTH et al. v. GILBERT, 79 F.2d 790

FARIS, Circuit Judge. Appellee in the trial court had judgment for $10,000 as damages for personal injuries accruing to him in an automobile collision, between the car of appellee and the car of appellant Booth, at the time an employee of appellant Cutler-Hammer, Inc., which collision, it is alleged, was caused by the negligence of Booth. On May 18, 1932, about 4 o’clock in the afternoon, at the intersection of Whittier street and Westminster place in the city of St. Louis, Mo., a collision occurred between an automobile driven by appellee and an automobile driven by Booth.

Appellee was going east on Westminster, and Booth, south on Whittier, which, at the point of collision, cross each other at right angles. So far as the record shows, there was at the time no very congested traffic at the place. In addition to the two cars involved, there was another car, fifty feet south coming north on Whittier and one very close to Whittier going west on Westminster. The latter swerved north in the rear of Booth’s car and put on the brakes and Booth slowed down. Almost instantly his car was struck in front by the left rear end of appellee’s car which attempted to swerve south and to the right.

Booth’s car was turned partly around and headed southwest, but stopped within about five feet from the point of collision. This point was at or near the thread or center point of the intersection of the two streets. After the contact, the car of appellee continued east, some twenty-five or thirty feet, turned toward the .southwest and ran over the curb, there some six inches high, and struck and came to rest against a tree in the grass parking, and was badly wrecked both at the left rear and on the left side where it hit the tree.

Appellee was thrown bodily from the caito the street and struck the sidewalk some four to six feet from the car, seemingly when his car hit and ran over the curb, or, if not, when his car hit the tree, which was barked by the contact. The car of Booth, beyond a small dent in the right front fender and the breaking of the right-hand support of the front bumper, was not at all damaged, nor was Booth at all hurt, or moved from his seat.

Appellee was seriously hurt, confined for many weeks in a hospital, where infections set in and blood transfusions were had, and his injuries to one leg and one arm are such and so serious that he will be crippled permanently. Seven allegations of alleged negligence are set up in appellee’s petition. In the light of the record, the briefs, the assignments of error, and the preservation thereof for review, it is not necessary to make mention of but three. These are: (

a) That defendant Booth was, at the time and place of the collision, driving his automobile at “a highly excessive and dangerous rate of speed”; (

b) that Booth was not driving his automobile as close to the right-hand curb of Whittier street as was practicable; and (

c) that defendant Booth negligently refused, having reached the intersection last, to accord to plaintiff, who was on the right of Booth, the right of way over and across the intersection. Under the charge of the court the above three alleged acts of negligence were submitted to the jury, as also was the alleged contributory negligence of plaintiff, for that he was driving at a highly excessive and dangerous rate of speed.

The other pleaded act of plaintiff’s alleged contributory negligence, for that he was not driving “as close as practicable to the right hand side of said McPherson (sic) avenue,” was not submitted, though warranted by the evidence of the witness Simpson. But by reason of the failure of appellants to properly, or at all, save the . last-mentioned point for review, it goes out of the case. Seventeen alleged errors are set out in the brief of appellants. Twelve of these are, in effect, that the verdict was not based on sufficient evidence to legally warrant the rendition of a verdict in favor of plaintiff.

Both at the close of the evidence for plaintiff and at the close of all of the evidénce in the case, appellants prayed an instruction in the nature of a demurrer to the evidence.

These proffered instructions, mutatis mutandis, were precisely similar and read, “the court instructs the jury at the clpse of the plaintiff’s evidence, that your verdict shall be for defendants.” As forecast, the peremptory instruction requested at the close of all of the evidence differed from that above quoted, only for that it used the term “all of the evidence,” in lieu of the term ' “plaintiff’s evidence.” Under the repeated rulings of this court, these motions for a directed verdict were insufficient in definiteness to preserve the point for review, in that they each failed to call the attention of the trial court to the point or points on which the motions were bottomed.

Massachusetts Bonding & Insurance Co. v. R. E. Parsons Electric Co. (C. C. A.) 61 F.(2d) 264, 92 A. L. R. 218; Mansfield Hardwood Lumber Co. v. Horton (C. C. A.) 32 F.(2d) 851; Falvey v. Coats (C. C. A.) 47 F. (2d) 856, 89 A. L. R. 1; Standard Accident Ins. Co. v. Rossi (C. C. A.) 52 F.(2d) 547. See, also, Adams v. Shirk (C. C. A.) 104 F. 54, 56; New York Life Insurance Co. v. Doerksen (C. C. A.) 75 F.(2d) 96. Confessedly, there exists, touching the procedural necessity of .a definite statement of the grounds relied on in a demurrer to the evidence, some diversity of opinion.

All this is pointed out in the late case of New York Life Insurance Co. v. Doerksen, supra, from the Tenth Circuit, wherein this diversity of opinion among the several circuits is rather fully discussed. But even that rule, to which seemingly the Tenth Circuit adheres, could not save the motions for a directed verdict here under discussion.

This for the reason that the only debatable ground possibly tenable for the sustaining of a motion for a directed verdict in the case at bar is involved and somewhat recondite. ' That ground is that the plaintiff was himself guilty of contributory negligence, for that he drove his car, at and before the collision, at a highly dangerous and excessive speed. Upon the bare face of the oral testimony, this fact is not clearly apparent.

But when the physical facts are closely analyzed and considered, it it fairly clear that these latter facts tend to prove that the testimony of appellee and his single witness on ‘the point of appellee’s speed is erroneous, and that appellee was driving his car, at the time of the collision, at a far greater speed than was defendant Booth. In such case, of course, a plaintiff may not recover on the ground of excessive speed.

In such situation, regardless even of the stringent rule in this circuit, but even according to the rule in the majority of the circuits, it was incumbent on appellants in- their motions for a directed verdict to make a definite statement of the ground, or grounds relied on. This they utterly failed to do, and so twelve of the alleged errors relied on must fall by the wayside and go out of the case.

The contention of appellants that the court erred in charging the jury on the alleged failure of defendant Booth to drive his car as near the west curb of Whittier street as was practicable cannot be noticed here, because it is not found among appellants’ assignment of errors, and appears only in the motion for a new trial with which ordinarily an appellate court is not at all concerned. Two other of appellants’ assignments of error may be considered together and deserve but short shrift. These are: (

a) That the verdict rendered was against the weight of the evidence; and (

b) that the amount awarded plaintiff as damages by the verdict of the jury was excessive. It is, we think, too well settled for argument to the contrary that a federal appellate court may not consider whether or not a verdict of a jury is against the weight of the evidence, if so it be that there is substantial evidence to uphold it. New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 12 S. Ct. 356, 36 L. Ed. 71; Ætna Life Ins. Co. v. Ward, 140 U. S. 76, 91, 11 S. Ct. 720, 35 L. Ed. 371.

The mailer of determining whether a verdict is, or is not, against the weight of the evidence, is for the trial court to consider on a motion for a new trial; nor is the granting or refusal of such a motion assignable as error in an appellate court. Winter Case and Ward Case, both supra. These two cases also dispose of appellants’ contention of error, for that the verdict in the instant case was excessive. This matter of the alleged excessiveness of the verdict is also ordinarily to be relegated to the discretion of the trial court, to be set in action by a motion for a new trial.

There are no facts, so far as we can find from the record, to take this case out of the general rule above announced. And so we conclude that the contentions that the verdict is excessive and that it is against the weight of the evidence must both be disallowed. Lacking authority to review these two contentions, the views of this court upon them are wholly irrelevant, and even if we were convinced that the verdict is contrary to the great weight of the evidence, no legal purpose would be attained by giving voice to our convictions.

So, the only point in the case, which it is possible for this court to review, is the contention of appellants that the court nisi erred in charging on, and leaving to the jury’s determination the matter of the alleged negligence of appellant Booth for that he was driving his car at and just before the collision at a “high, excessive and dangerous rate of speed,” as charged in the petition of appellee. Appellants contend in support of this allegation of error that there was no sufficient evidence in the case to show that the car of Booth was being driven at an excessive rate of speed.

The petition, all relevant parts of which we quote above, does not charge any definite rate of speed, but in effect may be said to charge speed as a matter of common-law negligence. The testimony upon the question of speed is meager and the physical facts bearing thereon quite complicated. The witness Stevens testifying for plaintiff said that he observed the car of appellant Booth, coining south in Whittier “at about twenty-five, maybe thirty miles an hour.” Booth himself said he was coasting at about sixteen miles an hour.

Simpson, a witness for defendant, said that Booth’s speed was only about one mile an hour. But, of course, upon the point as here presented, heed must be paid alone to plaintiff’s evidence and the concessions of a defendant, and not to what witnesses for defendant may say. This is all of the oral evidence on the question of the rate of Booth’s speed. True it is that Stevens, for plaintiff, spoke doubtfully, since he says in effect that his observation of Booth’s speed was only while Booth drove about five feet.

But it is also true that the witness says that the appellee entered the rectangle of the intersection first; that appellee was then driving at a rate of twelve to fifteen miles an hour. This square or rectangle was thirty feet wide north and south, and thirty-six feet long east and west.

So, Booth had to drive thirty feet while appellee had to drive thirty-six feet in order to clear the intersection, and they had, respectively, to drive fifteen and eighteen feet in order to meet at the center thereof; for the witnesses fairly agree that the collision occurred very near the center of the rectangle made by the intersection of Whittier and Westminster Place.

While not conclusive, since the witness does not tell how many parts of a second elapsed after appellee entered the rectangle of the intersection, before both entered it, it yet indicates rather clearly that the estimate of one mile an hour as made by Simpson is wholly unreliable. At the time appellant Booth approached this intersection, a car, fifty feet away and south, was coming north on Whittier, a car was moving west in Westminster very close to Whittier, and apWhittier, a car was moving west in Westminster toward Whittier. So, four cars were at the same moment about to occupy the rectangle of intersection.

Moreover, a number of cars were parked at the curbs of the intersecting streets, particularly along the south curb of Westminster.

So the sole question is: Was the rale of speed of Booth under the facts and situation a matter for the court to determine as a question of law, or was it one to be submitted to the jury as a question of fact, under the statute of Missouri, which controls this question of speed; for the court had either to leave it to the jury by his charge, or he had to conclude that the evidence as to Booth’s speed was such as io make it a mailer of law that it did not under the terms of the Missouri statute constitute a high and excessive speed.

The statute reads thus: “Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person, provided that a rate of speed in excess of twenty-five miles an hour for a distance of one-half mile shall be considered as evidence, presumptive but not conclusive, of driving at a rate of speed which is not careful and prudent, but the burden of proof shall continue to be on the prosecution to show by competent evidence that at the time and place charged the operator was driving at a rate of speed which was not careful and prudent, considering the time of day, the amount of vehicular and pedestrian traffic, condition of the highway and the location with reference to intersecting highways, curves, residences or schools.”

Section 7775, R. S. Mo. 1929 (Mo. St. Ann. § 7775, p. 5197). It will be noted that this statute fixes no definite limit, in miles per hour, of the speed at which a car may lawfully be driven on the public highways of Missouri. (In passing, it may be observed that no ordinance of the city of St.

Louis is involved, because no such ordinance is either pleaded or proved.) The statute simply requires that a car shall be driven in a careful and prudent manner; that the driver shall exercise the highest degree of care; and that the rate of speed shall not be such, or so great, as to endanger the life, limb, or property of others. True, the statute does say that a speed in excess of twenty-five miles an hour, when maintained for a distance of one-half a mile, shall be presumptive evidence, but not conclusive evidence, of the lack of care and prudence.

But even if the rate of speed so named be exceeded, the statute says the burden is still on the prosecution to show, by proof of the surroundings and situation — which may include, weather, time of day or night; intersections with other highways; • curves in the highway, or lack thereof; density of population, and of- pedestrian and vehicular traffic, and condition of the road — that the speed exercised was not, the time and place regarded, careful and' prudent, and was therefore excessive.

On the other hand, it seems fairly plain, from the language of this statute, that a driver may be guilty of driving at an excessive speed,, even though he shall drive at a speed less-than twenty-five miles an hour. Wilson v. Spuhler (Mo. App.) 20 S.W.(2d) 556.

The statutory test of excessive speed; vel non, is therefore not whether the driver has, or has not, driven at a rate in excess of twenty-five miles per hour, but the test is whether he drove his car in a careful and prudent manner exercising in so doing the highest degree of care, having due regard, we repeat, to his situation and surroundings, or some of them above set out. O’Donnell v. Wells, 323 Mo. 1170, 21 S.W.(2d) 762; Bramblett v. Harlow (Mo. App.) 75 S.W.(2d) 626; Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450; Wilson v. Spuhler, supra; La Duke v. Dexter (Mo. App.) 202 S.W. 254; Llywelyn v. Lowe (Mo.

App.) 239 S. W. 535; State ex rel. Hauck Bakery Co. v. Haid, 333 Mo. 76, 62 S.W.(2d) 400, 403. The cases cited last above are all Missouri cases.

In the Hauck Bakery Case, supra, it was said by the Súpreme Court of Missouri that: “Even though the speed of relator’s truck as it entered the street intersection may have been only eighteen or twenty miles an hour, as testified by its driver, it is to be remembered that when, as here, violation of statutory or ordinance speed limit is not relied on and the question of excessive speed is to be determined by common-law principles, whether or not the speed of a motor vehicle is negligent is to be determined in view of the existing circumstances and conditions and the exigencies of the situation and is usually a question for the jury.

What would be due care in one situation might be negligence in another. See Woods v. Kansas City Light & Power Co. (Mo. App.) 212 S. W. 899, 902; Engelman v. Metropolitan St. Ry. Co., 133 Mo. App. 514, 520, 113 S. W. 700; Bongner v. Zeigenhein, 165 Mo. App. 328, 147 S. W. 182; Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450; Ginter v. O’Donoghue (Mo. App.) 179 S. W. 732, 734.” The casualty here under discussion took place at a street intersection in a large and populous city of Missouri, as we are entitled to notice judicially.

Four cars moving north, east, west, and south respectively, were about to occupy at the same instant, and pass each other in, a space thirty feet by thirty-six feet in area. The speed to which Stevens swore was with all its qualifications and doubt for the jury. He said Booth’s speed was “25 maybe 30 miles an hour.” The jury then was warranted in finding that Booth’s speed was over twenty-five miles an hour. It was, of course, their duty to consider whether the physical facts were so clear as utterly to impeach Stevens.

If they were not, then the court could not say as a matter of law that Booth’s speed was not in excess of twenty-five miles an hour; nor could he say that such rate of speed in the situation and surroundings was not excessive. We are fairly driven to the conclusion that Booth’s rate of speed was here a question of fact and not one of law. The matter of speed is governed by a Missouri statute, and the construction of that statute by the Supreme Court of Missouri must be followed by us, regardless of our own views of its

interpretation. So, upon the whole record, we are constrained to conclude that the trial court, when his action is viewed in the light of the decisions of the • Missouri courts, construing

section 7775, supra, did not err in submitting to the jury the question of the rate of speed at which Booth was driving at and just before the collision. The Missouri cases are well-nigh unanimous in saying that under the Missouri statute, the question of excessive speed is usually a jury question-. Our own brief analysis of this statute tends to corroborate the correctness of the latter view. Finding no error that we are authorized to notice and consider, we are constrained to affirm the case, which accordingly we order.