Haag v. Cohen
| Decision Date | 04 April 1921 |
| Citation | 229 S.W. 296,207 Mo.App. 36 |
| Parties | HARRY HAAG, Appellant, v. I. J. COHEN, Respondent |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. William O Thomas, Judge.
AFFIRMED.
Judgment affirmed.
Griffin & Orr for appellant.
McLaughlin & Cosgrove for respondent.
This is a suit in damages. The plaintiff was driving west with his brother, Clarence Haag, in plaintiff's automobile, on the north side of Kansas avenue, a public street in the City of Kansas City, Kansas, near its intersection with First street. At the same time two wagons belonging to defendant, each drawn by two horses in charge of a driver and each loaded with scrap iron, consisting of long iron pipes which extended over the rear end of the rear wagon, were going west ahead of plaintiff's automobile and turned north on the north side of Kansas avenue for the purpose of weighing their loads on the scales situated just north of the sidewalk. The first wagon drove on the scales and was being weighed, or had been weighed, and the second, or rear wagon was behind the first with the horses' feet upon the sidewalk, either at a dead stop or moving slowly, the wagon extending north and south, the rear end thereof with the protruding pipes projecting into the street to, or almost to, the north rail of the north street car track. There were two car tracks on said street.
Plaintiff alleges that he swerved or turned his automobile to the south to pass behind the rear wagon and that when he was immediately behind the said wagon the latter, suddenly and without any warning backed forcing the protruding pipes into the automobile in front of the bow of the top, thus forming a fulcrum, catching plaintiff in the back, crushing him against the steering wheel, breaking two ribs and otherwise injuring him and greatly damaged his automobile.
The petition sets out the facts practically as related above and charges negligence of defendant, his agents, servants and employees in causing said wagon to be backed without warning into and against the automobile in which plaintiff was riding. The answer was a general denial and a plea of contributory negligence.
The case went to trial on the issues thus made and the verdict of the jury was for plaintiff in the sum of $ 1300. Defendant field his motion for a new trial and on January 31, 1920, the said motion was by the court sustained and from this action plaintiff appeals. The appeal is based upon the contention that the trial court erred in granting a new trial. There was no question raised in the trial as to the fact of plaintiff's injury and the damages to his automobile. No grounds were specified by the trial court in its order granting a new trial.
In Lead & Zinc Mining Company v. Webster, 193 Mo. 351, 92 S.W. 79, the court held:
Defendant, in his motion for a new trial, states the following grounds: That the verdict was against the greater weight of the evidence, that the verdict was against the law and the evidence, that the verdict was founded upon evidence in direct conflict with physical laws and physical facts surrounding the accident, that the court erred in refusing to sustain defendant's demurrer to plaintiff's evidence, and in not directing a verdict for defendant at the close of the evidence, and in giving the first, second and third instructions requested by plaintiff, and because the verdict was excessive and the result of bias and prejudice on the part of the jury in favor of plaintiff against defendant.
There is a general rule that an appellate court will not interfere with the action of a trial court in granting a new trial where it exercises a pure discretion, as, for instance, on the ground of the weight of the evidence. ". . . but where the ground is purely a...
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