Barnett v. Metropolitan Street Railway Company

• Decision Date: 31 May 1909
• Citation: 120 S.W. 730,138 Mo.App. 192
• Parties: EUDORA BARNETT, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

120 S.W. 730

138 Mo.App. 192

EUDORA BARNETT, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 31, 1909

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

AFFIRMED.

Judgment affirmed.

John H Lucas, F. G. Johnson and C. S. McLane for appellant.

The verdict should be set aside because it is so contrary to the great preponderance of the evidence, and so in opposition to the undisputed physical facts and laws of motion and physical forces as to compel the conclusion that the jury failed to consider all of the evidence and were influenced by passion and prejudice, and yielded to a partisan bias. Commissioners v. Clark, 94 U.S. 284; Powell v Railway, 76 Mo. 80; Garrett v. Greenwell, 92 Mo. 120; State v. Primm, 98 Mo. 368; Chitty v Railway, 148 Mo. 78; Reichenback v. Ellerbee, 115 Mo. 595; Spiro v. Transit Co., 102 Mo.App. 262; Jackson v. Hardin, 83 Mo. 186; Meier v. Proctor & Gamble Co., 81 Mo.App. 420; Kennedy v. Transit Co., 103 Mo.App. 1; Lehnick v. Railway, 118 Mo.App. 611; Bowlin v. Railroad, 125 Mo.App. 419; Pickens v. Railway, 125 Mo.App. 669; Nugent v. Milling Co., 131 Mo. 252; Payne v. Railroad, 136 Mo. 579; Hook v. Railway, 162 Mo. 580.

C. F. Mead and John C. Stearns for respondent.

The court will not disturb a verdict on the ground merely that it is against the weight of the evidence, unless it can be seen that the preponderance is so great as to imply some gross partiality, or some prejudice, or misconduct on the part of the jury. Spohn v. Railway, 87 Mo. 74; Bowlin v. Railroad, 125 Mo.App. 419; Pickens v. Railway, 125 Mo.App. 669.

OPINION

BROADDUS, P. J.

This is a suit for damages for injuries sustained by plaintiff alleged to have been the result of the negligence of the defendant--the sudden starting of one of its cars on which plaintiff was a passenger while she was in the act of alighting therefrom.

The plaintiff's evidence disclosed that about 7 o'clock p. m. November 8, 1906, the car on which she was a passenger on the defendant's Independence line stopped at Olive street for the purpose of allowing passengers, who desired to do so, to get off; that one passenger preceded her and had got off while the car was slowing down; that immediately she stepped down on the steps of the car, with her left hand grasping the handrail at the rear end of the car; that, as the car came to a stand and as she raised her foot to step down, the car gave a sudden jerk or lurch forward, which threw her feet out from the step, and that she fell to the ground, her body striking on the left side, with her feet to the south and her head to the north towards the car and on a line with the rear end of the platform. She sustained severe injuries as the result of her fall.

The defendant's testimony was to the effect that plaintiff attempted to get off the car while it was in motion against the warning of the conductor to wait until the car stopped; that she was facing south and fell on her left side to the pavement and to the east, and the car stopped four or five feet ahead of her body. The testimony of another witness of defendant was similar. Both state, as did plaintiff, the car moved but a few feet after the latter fell.

The plaintiff recovered judgment and defendant appealed.

The defendant's position is as follows: "The verdict should be set aside because it is so contrary to the great preponderance of the evidence, and so in opposition to the undisputed physical facts and laws of motion and physical forces, as to compel the conclusion that the jury failed to consider all of the evidence and were influenced by passion and prejudice, and yielded to a partisan bias."

In the first place, we are not permitted to overturn the verdict of a jury because of a preponderance of the evidence even when that preponderance is great. In such instances, the duty of setting aside the verdict of a jury devolves upon the trial judge. If the finding upon which the judgment is rendered...