Stetzler v. Metropolitan Street Railroad Co.

• Decision Date: 01 April 1908
• Citation: 109 S.W. 666,210 Mo. 704
• Parties: AMANDA STETZLER v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

109 S.W. 666

210 Mo. 704

AMANDA STETZLER v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 1, 1908

Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.

Affirmed.

John H Lucas, Ben F. White and F. G. Johnson for appellant.

The court erred in setting aside the verdict and granting a new trial to plaintiff. Noble & Ware v. Mitchell (Ala.), 25 L. R. A. 238; Roose v. Roose, 145 Ind. 482; Busche v. Scully, 107 Ind. 246; Obert v. Strube, 51 Mo.App. 621.

C. E Burnham, Kelly, Brewster & Buchholz and W. E. Burnham for respondent.

(1) The court did not err in setting aside the verdict and granting a new trial to the plaintiff. Norton v. Railroad, 40 Mo.App. 642; McDonald v. Cash, 45 Mo.App. 66; Ritter v. Bank, 87 Mo. 576; Evans v. Town of Trenton, 112 Mo. 390; Ensor v. Smith, 57 Mo.App. 584; State v. Barham, 82 Mo. 67. (2) The trial court erred in permitting Judge Johnson during the trial of the case to argue to the jury that plaintiff had told Dr. Boarman that she had been knocked off the car by a young man with a suitcase. Thompson on Trials, secs. 958 and 969; Marble v. Walters, 19 Mo.App. 135. (3) The court erred in failing and refusing to reprimand Judge Johnson for arguing to the jury that plaintiff had told Dr Boarman that she had been knocked off the car by a young man with a suitcase. Messengale v. Rice, 94 Mo.App. 430. (4) The court erred in permitting Judge Johnson to repeat said argument before the jury and in failing and refusing to reprimand counsel for repeating said argument to the jury. Gibson v. Zeibig, 24 Mo.App. 65; Tucker v. Hanniker, 41 N.H. 317. (5) The court erred in refusing the plaintiff's request that the stenographer's notes of Dr. Boarman's testimony be read in order that it might be ascertained whether or not he did testify that plaintiff had told him she had been knocked off the car by a young man with a suitcase. (6) The court erred in giving defendant's instruction 7 over the objection and exception of the plaintiff. Sheperd v. Railroad, 189 Mo. 363; Cafferatta v. Cafferatta, 23 Mo. 235; Montgomery v. Railroad, 181 Mo. 477; Conner v. Railroad, 181 Mo. 415; Zander v. Railroad, 103 S.W. 1006. (7) This court should sustain the trial court in granting a new trial if there is any error in the record. Hewett v. Steele, 118 Mo. 463; McShane v. Sanderson, 108 Mo. 316; Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 258; Bank v. Armstrong, 92 Mo. 265; Lovell v. Davis, 52 Mo.App. 342. (8) The burden is upon appellant to show that the trial court abused its discretion in granting a new trial. Eidemiller v. Kump, 61 Mo. 340; McCollough v. Ins. Co., 113 Mo. 606; Kennedy v. Holladay, 105 Mo. 24; Bank v. Wood, 124 Mo. 72; Rickroad v. Martin, 43 Mo.App. 597; Hewett v. Steele, 118 Mo. 463. (9) The action of the trial court in granting a new trial will be sustained by the appellate court if it can be done upon any of the grounds set out in the motion for that purpose, even though the grounds upon which it was granted had been entered of record and notwithstanding the court may have given a wrong reason for sustaining the motion. Hewett v. Steele, 118 Mo. 463; McShane v. Sanderson, 108 Mo. 316.

OPINION

VALLIANT, P. J.

This is a suit for damages for personal injuries alleged to have been received by the plaintiff as the result of the negligent starting of a street car on which she was a passenger while she was in the act of alighting therefrom. The only witness for the plaintiff to the accident was the plaintiff herself; her testimony was to the effect that she was a passenger on the car, it stopped at the intersection of Ninth and Main streets to allow passengers to alight, that she was in the act of getting off the car, had gone out on the rear platform, had stepped down on the lowest step of the car, "I got my foot in the air ready to step off, and the car went with a jerk and threw me." She stated that there were two men getting off the car at that time, one was a young man with a grip, he had asked the conductor about going to the Union Depot and when the car stopped he got off before plaintiff, the other got off after her. The other evidence in plaintiff's behalf related to the nature of her injuries. The testimony on the part of the defendant was to the effect that the plaintiff alighted safely from the car and advanced to the sidewalk and after getting on the sidewalk tripped and fell. The trial resulted in a verdict for the defendant. Plaintiff filed a motion for a new trial, which the court sustained, and the defendant appealed.

The only ground on which the motion for a new trial was sustained, as stated by the court, was that counsel for the defendant in his argument to the jury had misstated the evidence of one of the witnesses for the defendant. The ruling on that point presents the first question for our consideration.

The defendant called as a witness a physician who had attended the plaintiff and had treated her for her injuries. As some question was likely to arise as to the competency of this witness's testimony, the court directed that the jury be sent out of the room. After the jury had retired the counsel for defendant was directed to ask the witness such questions as he intended to ask when the jury should be recalled, this with a view to enable the court to judge of the competency of the evidence, a course of procedure which we will take this occasion to say was very wise and judicious. In the absence of the jury, after the witness in answer to questions by counsel for defendant had stated that he was a practicing physician and that he had been called to attend the plaintiff and had continued to attend her for about two months, the following occurred: "By the Court: Q. You waited on her; did she at any time tell you of any hurt she had received or injuries that she had? A. She did. Q. You may state what she said in reference to the manner in which she received these injuries? A. She said she was on the Metropolitan car on Main street coming north, and when she got to Ninth and Main streets, where she was going to get off, she had heard the conductor talking to a man in the car that wanted to go to the Union Depot, and the conductor told him he would have to hurry to catch the Ninth street car, and the man as she started to get off -- the man brushed against her and she fell from the car."

While the jury was still out counsel for defendant stated to the court in the way of an offer what he purposed to show by this witness, in which statement he made no reference to what the plaintiff said to the witness about the accident, but it related only to the physical condition in which the witness found her and during his treatment of her. At the conclusion of which offer the counsel for the plaintiff said they made no objection to it. The jury then came in and the trial was resumed with the physician as a witness for the defendant on the stand; his testimony was on the line of the offer above stated; he was not asked in regard to anything the plaintiff said to him about the accident or how it occurred.

In his argument before the jury the counsel for the defendant said: "Why did not the plaintiff put Dr. (naming the physician) upon the stand? I will tell you why; they did not dare do so; they knew that he would testify, as he has testified in this case, that the plaintiff told him she had been pushed off the car by a young man with a suitcase." When this statement was made counsel for the plaintiff immediately objected and stated that there was no such testimony by the physician and he objected to any argument based thereon, and requested the court to reprimand the counsel for defendant and to instruct the jury to disregard such argument, but the court refused the request, saying at the time that the jury would remember the evidence. Thereupon counsel for defendant said that he would submit to the jury whether or not there was such evidence and that if there was not such evidence that fact should count against him, and again asserted that there was such evidence. Counsel for plaintiff again stated that there was no such evidence and asked the court to reprimand counsel for defendant and asked that the stenographer's notes be read to the jury, but the court refused the request and said the jury should determine whether or not there was such evidence in the case.

In ruling on the motion for a new trial the trial judge delivered a written opinion in which he said: "This motion must be sustained because of the error of counsel for defendant in misstating the testimony in his argument to the jury." Then, after citing and quoting decisions on the point, the trial judge continued: "The court likewise erred in refusing to reprimand counsel for the misstatement. It is due to the able counsel for defendant to say that without question his argument was made in the best of faith, believing the facts were in evidence, but he was mistaken, and the court was mistaken in failing to take prompt measures to correct the mistake. Error is presumed prejudicial and in a close case like this, where error has undoubtedly intervened, the interests of justice demand a new trial be had."

I. A motion for a new trial is to a great degree addressed to the judicial discretion of the trial judge, and an appellate court is reluctant to interfere with the exercise of that discretion. Particularly is this so when the case turns on the weight of the evidence or on the conduct of the counsel in the trial. The trial court is better able than is the appellate court to estimate the value of the evidence and the effect on the jury of the conduct of the parties during the...