Lee v. Publishers George Knapp & Company

• Decision Date: 09 February 1897
• Citation: 38 S.W. 1107,137 Mo. 385
• Parties: Lee v. Publishers George Knapp & Company, Appellant
• Court: Missouri Supreme Court

38 S.W. 1107

137 Mo. 385

Lee v. Publishers George Knapp & Company, Appellant

Supreme Court of Missouri, First Division

February 9, 1897

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Affirmed.

A. & J F. Lee for appellant.

Appellant contends that the trial court erred in granting the new trial for the following reasons: First. The plaintiffs have no cause to complain in any event as the verdict on the evidence should have been for defendant. (a) No evidence or inference of defendant's negligence. Overholt v. Vieths, 93 Mo. 422; Blanton v. Dold, 109 Mo. 64; Randle v. Railroad, 65 Mo. 325; Smilie v. St. Bernard Dollar Store, 47 Mo.App. 402; O'Brien v. Western Steel Co., 100 Mo. 182; Troth v. Norcross, 111 Mo. 630; Haynes v. Trenton, 108 Mo. 123; Alcorn v. Railroad, 108 Mo. 81; Porter v Anheuser-Busch, 24 Mo.App. 1; Smith v. Railway, 69 Mo. 32. (b) No proximate cause and the injury not reasonably anticipated. Wharton on Negligence, secs. 18 and 213; O'Malley v. Railroad, 113 Mo. 319; Greenland v. Chaplin, 5 Ex. 248; Gerhard v. Bates, 2 Ell. & Bl. 490; Cooley on Torts, p. 69; Bishop on Noncontract Law, sec. 43; Shearman & Redfield on Negligence, sec. 57; Porter v. Anheuser-Busch, supra; Snelling v. McDonald, 14 Kan. 292; 1 Sutherland on Damages, 23; Hicks v. Railroad, 46 Mo.App. 304. (c) The elevator not a common carrier of passengers. R. S. 1889, sec. 4425; Thompson on Carriers of Passengers, sec. 1, p. 26; O'Brien v. Western Steel Co., 100 Mo. 182. (d) The only possible inference is that the contributory negligence of deceased was the direct cause of his death. Weber v. Railway, 100 Mo. 194; Carroll v. Rapid Transit Co., 107 Mo. 653; Nelson v. Railroad, 68 Mo. 593; Strauss v. Railroad, 75 Mo. 185; Corcoran v. Railroad, 105 Mo. 399; Gleason v. Excelsior Mfg. Co., 94 Mo. 201; Barton v. Railroad, 25 Mo. 253; Lenox v. Railroad, 76 Mo. 86; Smith v. Citizens R'y Co., 52 Mo.App. 36; Fugler v. Bothe, 117 Mo. 475; Aldrich v. Furnace Co., 78 Mo. 558; O'Brien v. Western Steel Co., 100 Mo. 182. (e) Lee's minority did not preclude his being guilty of contributory negligence. Ridenhour v. Railroad, 102 Mo. 270; Wilmott v. Railway, 106 Mo. 535; Lynch v. Railroad, 112 Mo. 420; McCarthy v. Railroad, 92 Mo. 536. Second. The court had no right to interfere with the jury's determination of the measure of damages in an action for personal torts, especially had it no such right in an action for loss of services from the death of a son where nothing can be recovered for mental anguish. Gregory v. Chambers, 78 Mo. 294; Dowd v. Air Brake Co., 34 S.W. 493; R. S. 1889, sec. 4427; Pritchard v. Hewitt, 91 Mo. 547; Leahy v. Davis, 121 Mo. 227; Boggess v. Railroad, 118 Mo. 328; Parsons v. Railroad, 94 Mo. 286; 2 Thompson on Negligence, p. 1271; Phillips v. Phillips, 34 N. J. L. 208; Shoff v. Wells, 1 Neb. 168; 15 Am. and Eng. Ency. of Law, p. 683; Brown v. Railroad, 51 Mo.App. 192; 1 Shearman & Redfield on Negligence, sec. 137; Watson v. Harmon, 85 Mo. 443. Third. Any bias or prejudice to invalidate a verdict must appear aliunde or dehors the verdict, and none is here alleged or shown. Brown v. Railroad, 51 Mo.App. 192; Leahy v. Davis, 121 Mo. 227. Fourth. The order granting a new trial specified clearly erroneous grounds therefore in placing it upon bias and prejudice in the jurors as shown alone by the inadequacy of the verdict. Millar v. Madison Car Co., 130 Mo. 517; Milling Co. v. Transit Co., 26 S.W. 704; R. S. 1889, sec. 2246, amended by Acts 1891, p. 7; R. S. 1889, sec. 2241; 20 Am. and Eng. Ency. of Law, pp. 486, 490; Bank v. Eyer, 58 Pa. St. 97.

Virgil Rule and A. R. Taylor for respondent.

(1) Carriers of passengers by elevators are bound to exercise the highest degree of human care for the personal safety of the passengers, in every respect, whether in the construction of the elevator and machinery, or its operation by the attendants. Webb on Elevators, secs. 3, 6, 46; Mitchell v. Marker, 62 F. 140; Treadwell v. Whittier, 80 Cal. 574; McGrell v. Office Bld. Co., 70 N.Y. 372; Morrison v. Tel. Co., 52 N.Y. 601; Tousey v. Roberts, 114 N.Y. 312; Gierchard v. New, 65 N. Y. St. 20; Kentucky Hotel Co. v. Camp, 30 S.W. 1010; Godsell v. Taylor, 41 Minn. 207; McGonigle v. Kane, 20 Colo. 292; Bank v. Morgolofski, 75 Md. 432; Dawson v. Sloan, 100 N.Y. 620; Laws Mass. 1890, ch. 90; Con. Laws Minn. 1895, ch. 171; 1893, ch. 7, sec. 3; Laws N. Y. 1892, ch. 673, sec. 3; 1890, ch. 398, sec. 8; Laws Penn. 1895, p. 129; Laws Mich. 1893, 126, sec. 8; Laws Conn. 1893, ch. 118. (2) First. If from the foregoing statement of facts, quoted from the record, reasonable men might fairly differ on the question of defendant's negligence, it is for the jury to determine, and the court did not err in submitting the question to the jury. Lee v. Knapp & Co., 55 Mo.App. 390; O'Mellia v. Railroad, 115 Mo. 205; Witting v. Railroad, 101 Mo. 631; Easley v. Railroad, 113 Mo. 236; Lynch v. Railroad, 112 Mo. 420; Gratiot v. Railroad, 116 Mo. 450; Dowell v. Guthrie, 116 Mo. 646: Dixon v. Railroad, 109 Mo. 413; Burger v. Railroad, 112 Mo. 238; Loemer v. Sedalia, 77 Mo. 444; Buesching v. Gas Light Co., 73 Mo. 220; Smith v. St. Joseph, 45 Mo. 449; Russell v. Columbia, 74 Mo. 494; Barr v. Kansas City, 105 Mo. 560; Maus v. Springfield, 101 Mo. 618; Boland v. City of Kansas, 32 Mo.App. 15. Second. Contributory negligence, as a matter of law, can not be imputed to a child twelve years old. Murphy v. Railroad, 43 Mo.App. 342; Gass v. Railroad, 57 Mo.App. 574, and cases cited. (3) The jurors found for plaintiff, but their verdict under the circumstances detailed in evidence and the facts admitted was such as to "shock the understanding" of the trial judge; he was therefore justified in finding that their verdict "was the result of either passion, prejudice or partiality, or that they shrunk from deciding the issues submitted to them." Fairgrieve v. Moberly, 29 Mo.App. 151; Gregory v. Chambers, 78 Mo. 294; Spohn v. Railroad, 87 Mo. 74; Brown v. Railroad, 51 Mo.App. 192; Pritchard v. Hewitt, 91 Mo. 551; 1 Graham and Waterman on New Trials [2 Ed.], * 122 to * 126, and * 368 and * 369; 2 Sedgwick on Damages [7 Ed.], 660, note a; Welch v. McAlister, 13 Mo.App. 89; Whitsett v. Ransom, 79 Mo. 258; Garrett v. Greenwell, 92 Mo. 120; Caruth v. Richeson, 96 Mo. loc. cit. 192; Boggess v. Railroad, 118 Mo. 339. (4) The granting of a new trial rests peculiarly within the discretion of the trial court, that court being of the opinion that this verdict was unconscionable the appellate court will not set aside its action, unless the trial court has abused its discretion. McDonough v. Nicholson, 46 Mo. 35; McKay v. Underwood, 47 Mo. 189; Bank v. Armstrong, 92 Mo. 265; McCullough v. Ins. Co., 113 Mo. 606; Eidemiller v. Krump, 61 Mo. 340; Kennedy v. Holladay, 105 Mo. 24; Bank v. Wood, 27 S.W. 554; Gregory v. Chambers, 78 Mo. 299; Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Dowd v. Westinghous, 44 S.W. 493; Whitsett v. Ransom, 79 Mo. 258.

OPINION

Robinson, J.

This is an appeal from an order of the trial court setting aside a verdict and judgment for plaintiff for one cent damages on plaintiff's application, and granting to her a new trial.

Defendant prosecutes this appeal from that order, contending that plaintiff had no cause to complain, as the verdict on the evidence should have been for defendant in the first instance, and that its instruction for a nonsuit as prayed at the close of the case should have been given.

If defendant is right in its contention, then of course plaintiff could not complain as set out in her motion for a new trial: "I. That the verdict and damages assessed are the result of bias and prejudice on the part of the jury and is grossly inadequate and absurd. II. That the verdict is the result of a compromise entered into between the jurors," etc.

We do not think that defendant can fairly maintain itself on that contention, however, and consider the action of the trial court in refusing defendant's instruction asking for a nonsuit against plaintiff at the close of the trial proper.

This case upon the same state of facts, so far as regards plaintiff, was before the St. Louis court of appeals, on an appeal from a judgment against defendant for $ 1,600, and is reported in 55th volume of our Appeal Reports at page 390, and while there the question as to the sufficiency of the testimony offered on part of plaintiff to warrant the action of the trial court then in submitting the case to the jury was fully discussed, and on that point the trial court was sustained, but the case was reversed and remanded for a new trial on account of error committed in the giving of an improper instruction in plaintiff's behalf.

The statement of facts as detailed by that court we adopt as the statement in this, as also the conclusion reached on their consideration.

In passing upon an application to nonsuit the plaintiff, which is but a demurrer to the evidence offered in plaintiff's behalf, every inference of fact in favor of the plaintiff from the evidence, which the jury might have inferred with any reasonable degree of propriety, the court must indulge.

The evidence for the plaintiff was that this elevator, from which plaintiff's son fell, was used chiefly after 6 o'clock in the evening for the purpose of conveying messenger boys, with dispatches and telegrams from the various news centers of the city, to the office of the defendant on the fifth floor of its building; that there existed from the time the elevator started on its journey upward or downward, until it reached its destination, an unguarded space or opening in the cage where passengers passed out into the recess in the wall of the elevator chute before reaching the door, that would permit them to...