Geiger v. City of St. Joseph

• Decision Date: 05 November 1917
• Docket Number: No. 12382.,12382.
• Parties: GEIGER v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

198 S.W. 78

GEIGER v. CITY OF ST. JOSEPH.

No. 12382.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by Charles G. Geiger against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles L. Faust and Perry A. Brubaker, both of St. Joseph, for appellant. Randolph & Randolph, of St. Joseph, for respondent.

TRIMBLE, J.

In the rear of plaintiff's lot was an alley in which the city had constructed a sewer with an inlet therein to receive and carry off the surface water falling upon the streets and collecting in that vicinity. The city allowed the inlet to become clogged and filled with dirt and refuse, and to remain so for such an unreasonable length of time as to give constructive notice of its condition and of the likelihood of damage arising therefrom. By reason of said clogged inlet and sewer, the water falling upon the streets and collecting at that point was not carried off, but overflowed plaintiff's lot, depositing a thick layer of sediment upon his sodded lawn and in the buildings thereon so as to destroy his lawn grass and render the premises uninhabitable. He brought this suit for damages, and upon a trial the jury returned a verdict for defendant. The court granted plaintiff a new trial upon the ground that the verdict was against the weight of the evidence. Thereupon the defendant appealed.

The granting of one new trial on the ground that the verdict is against the weight of the evidence is within the discretion of the trial court, and its action in so doing will not be interfered with by the appellate court where there is any substantial evidence which would justify a result contrary to that of the verdict. Miners, etc., Bank v. Rogers, 123 Mo. App. 569, 100 S. W. 534; Peper v. Peper, 241 Mo. 260, 145 S. W. 408. If the evidence or the case is such that no verdict in favor of the party to whom the new trial is granted could ever be allowed to stand, the judgment granting a new trial will be reversed. Powell v. Batchelor, 192 Mo. App. 67, 76, 179 S. W. 751; Ottomeyer v. Pritchett, 178 Mo. 160, 77 S. W. 62.

Upon examination of the record we find the case does not come within the exception which permits us to interfere with the order granting plaintiff a new trial. There was substantial evidence in plaintiff's favor that the city built the sewer and inlet that it negligently allowed the...