Case v. Jefferson City Bridge & Transit Co.

• Citation: 211 S.W. 99
• Decision Date: 07 April 1919
• Docket Number: No. 13206.,13206.
• Parties: CASE v. JEFFERSON CITY BRIDGE & TRANSIT CO.
• Court: Court of Appeal of Missouri (US)

211 S.W. 99

CASE v. JEFFERSON CITY BRIDGE & TRANSIT CO.

No. 13206.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

"Not to be officially published."

Action by Rex C. Case against the Jefferson City Bridge & Transit Company. Judgment for plaintiff. From an order sustaining defendant's motion for new trial, plaintiff appeals. Affirmed.

Pope & Lohman, of Jefferson City, for appellant.

Irwin & Haley, of Jefferson City, for respondent.

BLAND, J.

This is an action for damages for personal injuries caused by the alleged negligence of the defendant in operating an electric street car On High street, in Jefferson City, Mo. The car collided with a one-horse delivery wagon being driven by plaintiff eastward on said street. This is the second appeal of the case. See Case v. Jefferson City Bridge & Transit Co., 189 S. W. 390. In that case the judgment was reversed, and the cause remanded, because the evidence showed as a matter of law that plaintiff was guilty of contributory negligence. The only allegation of negligence in the petition was that the car was being run "at a reckless, careless, dangerous, and unlawful rate of speed." After the case was reversed and remanded, and before the last trial, plaintiff amended his petition, so as to allege a cause of action under the humanitarian rule. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $300. Thereafter defendant's motion for a new trial was sustained, and plaintiff has appealed.

The trial court gave as his reason for sustaining the motion for a new trial that "the ground on which the new trial is granted is because of plaintiff's instruction No. 4 and because of insufficiency in plaintiff's proof." Plaintiff's instruction No. 4 was on the measure of damages, and defendant does not point out wherein it is defective, and upon an examination we are unable to see any defect in it. However, the court gave as one of his reasons for granting a new trial that there was "insufficiency in plaintiff's proof." The first assignment of error in defendant's motion for a new trial was that the verdict was "against the evidence and the greater weight of the evidence." The ruling of the court in granting a new trial must be upheld. There was evidence on the part of the defendant that the horse and wagon were suddenly turned across and immediately in front of the car, and in such proximity thereto that the motorman had no opportunity to stop the same or avoid the injury, although he used every means at hand to do so. Of course, there was other evidence on the part of plaintiff to contradict this evidence of the defendant; but, if defendant's evidence is to be believed, the motorman had no opportunity to avoid the Injury, and there was no negligence or liability on the part of the defendant. It has long been the rule that the trial court has the right to grant one new trial on the ground of the insufficiency of the evidence. Section 2023, R. S. 1909; Kreis v. Mo. Pac. Hy. Co., 131 Mo. 533, 33 S. W. 64, 1150; King v. Mann, 199 S. W. 705; Glidewell v. Quincy, O. & K. C. Ry. Co., 204 S. W. 37. The granting of a new trial in this case on the "insufficiency in plaintiff's proof" is therefore upheld.

Plaintiff makes the point that the motion for new trial was not filed within four days after the verdict, or, in fact, not until many days thereafter, and after the expiration of the term at which the verdict was rendered. The record proper shows...