Dorset v. Chambers

• Decision Date: 15 February 1915
• Citation: 173 S.W. 725,187 Mo.App. 276
• Parties: JANE M. DORSET, Respondent, v. E. C. CHAMBERS, Appellant
• Court: Kansas Court of Appeals

173 S.W. 725

187 Mo.App. 276

JANE M. DORSET, Respondent, v. E. C. CHAMBERS, Appellant

Court of Appeals of Missouri, Kansas City

February 15, 1915

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

Judgment affirmed.

George L. Davis for appellant.

The court erred in granting plaintiff a new trial on grounds that the verdict is against the weight of the evidence in that if plaintiff had a right to recover any amount, it should have been in excess of the amount recovered. The verdict was substantial in amount and was not in such form or amount as to shock the understanding, or convince the court that it was the result of prejudice and passion. Pritchard v Hewitt, 91 Mo. 547; Dowd v. Westinghouse Airbrake Co., 132 Mo. 579; Edwards v. Railroad, 82 Mo.App. 478; Gregory v. Chambers, 78 Mo. 294; Watson v. Harmon, 85 Mo. 443.

Atwood & Hill and Ball & Ryland for respondent.

It is not only within the province, but is the exclusive duty, of the trial court to set aside a verdict whenever in its judgment the verdict is against the weight of the evidence and in such case the appellate court will not disturb its action in setting the verdict aside. Lockwood v. Ins Co., 47 Mo. 50; Reed v. Life Ins. Co., 58 Mo. 421; Iron Mountain Bank v. Armstrong, 92 Mo. 265; Chouquette v. Railroad, 152 Mo. 257; Dean v. Ins. Co., 65 Mo.App. 209; P. Express Co. v. Emerson, 86 Mo.App. 683.

OPINION

JOHNSON, J.

--This is an action for personal injuries plaintiff alleges were caused by negligence of defendant in the operation of his automobile. The answer is a general denial.

The jury returned a verdict for plaintiff, assessing her damages at $ 500. In due time she filed a motion for a new trial and the court sustained it on the ground stated in the order "that the verdict is against the weight of the evidence in that if plaintiff had a right to recover any amount it should have been in excess of the amount recovered." Defendant appealed.

The evidence shows that plaintiff, at the time of the injury, was sixty-five years old and that her injuries consisted of a compound comminuted fracture of both bones of her left leg, severe bruises and cuts on her head and bruises on her hip and hand. Of the injury to her leg one of her physicians testified "it was broken in more than one place--fragments--the bones came out through the soft part, came clear outside the flesh and shot clear through--the larger one came out." She was confined to her room four months. She had not completely recovered at the time of the trial and there is room in the evidence for the conclusion that she never will recover fully. Of the injury to her head plaintiff testified: "I have suffered a great deal with my head and neck. At first I thought possibly my--there was a crack in the base of my brain. I must have fallen on my head, and the pain has been intense at times. Then it will get better, but if I carry my head in a certain position for any length of time I can't turn it. I am continually turning my head to keep it so that--to lubricate it, as it were. It has been painful."

The position of defendant is that the court erred in granting a new trial on the ground of the inadequacy of the damages assessed by the jury since the verdict was for a substantial sum and was not so inconsistent with the evidence, and reasonable inferences that might be drawn therefrom, as to shock the conscience of the court or to indicate that the jury must have been moved by passion or prejudice. We are cited to the following cases as supporting this position: Pritchard v. Hewitt, 91 Mo. 547, 4 S.W. 437; Dowd v. Air Brake Co., 132 Mo. 579, 34 S.W. 493; Edwards v. Railway, 82 Mo.App. 478; Gregory v. Chambers, 78 Mo. 294; Watson v. Harmon, 85 Mo. 443.

Those cases state a rule applicable to actions sounding in tort where the trial court refuses to grant a new trial on the ground of the inadequacy of the damages assessed in the verdict. But this rule is not for the guidance of the trial judge in the performance of his duty as a trier of fact to weigh the evidence and to set aside the verdict, if he finds it is not supported by the weight of the evidence.

Section 2023, Revised Statutes 1909, provides: "Only one new trial shall be allowed to either party, except: First, where the triers of fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted."

Under this statute the trial judge may grant one new trial on the ground that the...