Allen v. St. Louis & S. F. R. Co.

• Decision Date: 02 December 1912
• Parties: ALLEN v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

151 S.W. 762

167 Mo. App. 498

ALLEN v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

December 2, 1912.

1. APPEAL AND ERROR (§ 977) — NEW TRIAL (§ 6) — DISCRETION OF LOWER COURT.

Trial judges have a wide discretion in granting new trials to accomplish justice; and their order will not be reversed, unless an abuse of discretion plainly appears.

2. APPEAL AND ERROR (§ 977) — REVIEW — ORDERS RESPECTING NEW TRIAL.

Appellate courts are less disposed to reverse orders granting new trials than orders refusing them.

3. NEW TRIAL (§ 103) — NEWLY DISCOVERED EVIDENCE — DISCRETION OF COURT — EVIDENCE.

In an action for personal injury alleged to have been received by the sudden stopping of a train, a grant of defendant's motion for new trial on the ground of newly discovered evidence was proper, where the evidence of defendant tended to establish that there was no sudden stop, as contended by the plaintiff, and the new evidence was that of the sister of the plaintiff, and tended to show that the plaintiff took the trip on which she was injured with intention of getting hurt, and afterwards feigned injury, as such evidence was material; and because of the relation of the witness to the plaintiff it cannot be considered that there was lack of diligence in its procurement.

Appeal from Circuit Court, Oregon County; W. N. Evans, Judge.

Action by Ollie Allen against the St. Louis & San Francisco Railroad Company. From an order granting the defendant a new trial on a judgment for plaintiff, plaintiff appeals. Affirmed.

E. P. Dorris, of Alton, and Orchard & Cunningham, of Eminence, for appellant. W. F. Evans and W. J. Orr, both of St. Louis, Green & Wayland, of West Plains, and George Miley, of Thayer, for respondent.

NIXON, P. J.

This is an action to recover damages for personal injuries, which the appellant claims to have suffered by reason of the negligence of the agents and servants of the defendant railroad company while she was about to leave defendant's passenger train at the town of Koshkonong, Mo.

The portion of the petition charging negligence is as follows: "That on said 3d day of December, 1911, this plaintiff purchased a ticket from the station agent at Thayer, Missouri, good for one passage from Thayer, Missouri, to Koshkonong, Missouri; that on said date she boarded defendant's passenger train at the city of Thayer to ride to the town of Koshkonong; that the porter of said train, who was employed by said defendant company, came into the car in which plaintiff was seated and riding therein as such passenger, as aforesaid, and called out the station of Koshkonong and picked up the step which is set down in front of the steps of the car and started out with it; that soon thereafter the said train stopped, and quite a number of passengers who were riding thereon started towards the door to alight from said train, and went as far as the platform; that this plaintiff, believing said train had stopped for the station, and plaintiff, acting on the information given by said porter, as aforesaid, and believing said train had stopped at the platform at the station of Koshkonong, went out on the platform of the passenger coach in which she was riding, as aforesaid, for the purpose of alighting therefrom; that several parties were in front of her on the platform, and she was unable to alight at that time; that while she was standing on said platform, waiting for an opportunity to alight from said train, said train started to move, either backward or forward (and plaintiff is not sure which), with a sudden and violent jerk, without any warning whatever from any source to this plaintiff that said train was about to move, the force of which caused this plaintiff to be thrown violently backward into the door of the passenger coach, her head striking the door a violent blow, and her body being thrown violently to and upon the floor of the passenger coach, whereby and by reason thereof she received serious injuries in her head, back, spine, side, and breast; that the injuries suffered by this plaintiff, received in the manner aforesaid, were caused solely by the gross neglect of the defendant company in calling out the station by its said porter in the manner and at the time aforesaid, and in failing to warn plaintiff of the danger in attempting to alight at the time and place aforesaid, and in starting said train backward or forward, as the case may be, with a violent and sudden jerk, without warning to this plaintiff."

Immediately after the accident (on December 3, 1911, at about 2 or 3 o'clock a. m.) plaintiff was removed to her home at her father's house in Koshkonong, where her sister, Mrs. J. E. Dewberry, also resided.

At the trial plaintiff stated as a witness that as a result of the fall she received injuries to her head, and back in her spine, and that there was a contusion or bruised place on her head; that about 8 o'clock a. m. after the accident she called a physician (Dr. Barnes) to wait on her on account of the injuries she had received. She testified he did not examine her very much. On cross-examination, this question was asked, "You did not call his attention to this bruised place?" The answer was: "I said I don't know whether I did or not. I was sick." About a month later she called another physician on account of her injuries, named J. K. Cantrell, and she testified that she showed the bruised place to him, and that at that time it had not healed. She testified that she could not state that it left a scar, as it was in her hair. Dr. Barnes was not called as a witness in behalf of the plaintiff. Dr. Cantrell testified for the plaintiff that he made a physical examination of her person about the 5th day of January, some 30 days after the accident, and for that purpose removed her clothing; that in this examination he found no abrasion or bruise about her head; that he found only a little bruise on the left side of her back; that she complained of a pain or pressure of the spine in the muscles of her back when he pressed her lumbar muscles; that she also complained about her head; that when under pressure it produced pain.

Plaintiff also introduced three witnesses who were on the train or at the depot at the time the accident is alleged to have occurred. None of...