Haven v. Missouri R. Co.

• Decision Date: 14 March 1900
• Citation: Haven v. Missouri R. Co., 155 Mo. 216, 55 S.W. 1035 (Mo. 1900)
• Parties: HAVEN v. MISSOURI R. CO.
• Court: Missouri Supreme Court

55 S.W. 1035

155 Mo. 216

HAVEN v.MISSOURI R. CO.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

NEW TRIAL — DISCRETIONAY RULINGS — REVIEW —EVIDENCE—NOMINAL DAMAGES —VERDICT.

1. The object and effect of Rev. St. 1889, § 2246, as amended Acts 1891, p. 70, and Acts 1895, p. 91, giving right of appeal from an order granting new trial, was to confer the right of making such appeals before final judgment without the appellant abandoning his case, and such statute did not change the rule that on such appeal the court will not interfere with discretionary rulings of the trial court, but will only reverse the order when there is no substantial evidence to support it.

2. Where a preponderance of evidence showed that the car from which plaintiff stepped when she was injured was in motion all the time she was attempting to descend, but plaintiff and one other witness testified that it came to a stop, and then started again just as she was stepping down, an order granting plaintiff a new trial could not be reversed on the ground that, even should plaintiff recover, there was no evidence to support her verdict.

3. Where plaintiff suffered material damages from personal injuries, which a preponderance of the evidence showed resulted from her own negligence, but the jury found in her favor for nominal damages only, an order granting her a new trial on the ground that the jury, having found that she was entitled to recover, disregarded the court's instructions as to the measure of damages, can only be construed to mean that the trial judge believed that the evidence entitled plaintiff to recover, and that the jury erred in disregarding instructions; hence such ruling was discretionary, and cannot be interfered with on an appeal from the order granting new trial.

Appeal from St. Louis circuit court; Horatio D. Wood, Judge.

Action by Lydia E. Haven against the Missouri Railroad Company.There was judgment for plaintiff for nominal damages, and from an order granting her a new trial defendant appeals.Affirmed.

This is an action for damages for personal injuries alleged to have been sustained by the plaintiff while alighting from one of the defendant's trains of cable cars, charged to have been caused by the starting of the train before the plaintiff had time to safely leave it.There was a verdict for the plaintiff for one cent damages, and upon motion of the plaintiffthe trial court granted her a new trial, "for the reason that the jury, having found that the plaintiff was entitled to recover, disregarded the court's instructions as to the measure of damages, and have shrunk from deciding the issues submitted to them."From this order the defendant appealed.

The negligence charged in the petition is that plaintiff was a passenger on defendant's train, and, when the train reached Seventh and Olive streets, going east, she signaled the conductor to stop the train, which the conductor did, but before she had time to get off, and when she was in the act of getting off, but while she was still on the platform of the car, the train was suddenly started, in consequence of which she was thrown off of the car, and injured.The answer is a general denial and a plea of contributory negligence, in this: that without signaling to or notifying the conductor the plaintiff undertook to alight from the train while it was in motion, and that her injuries were caused by her own negligence.The plaintiff testified that on the day of the accident, December 13, 1895, about 9 o'clock a. m., she boarded the train at Twenty-Seventh and Olive streets, and when the conductor collected her fare she told him she wanted to get off at Seventh street; that when the train reached Eighth street she motioned to the conductor to stop at Seventh street, and he nodded, to show that he understood her; that the train stopped on the east side of Seventh street, and several persons rose to get off, and she did likewise.On cross-examination she testified that she was sitting towards the front end of the car, and when she was leaving the car she was some distance behind the other persons who were getting off; that the other persons got off of the car, and when the last one left the car she(the plaintiff) was "just half way the length of the car" from that person; that just as she put her left foot down off the car, and while her right foot was still on the steps, the car "gave a jerk, and threw me to the pavement; my left side was bruised, and my hip considerably."On reexamination she testified: "Q.Youwere asker on cross-examination about the intervening space between yourself and the passengers next ahead of you in leaving the car at Seventh street, and you said that probably half the length of the car intervened.I want to get you to say whether, at the time you were leaving the car, and were in the middle of the car, those passengers were in the door, or on platform, or off the step.Give some idea about the relative position of yourself in the car with the last passenger leaving the car just ahead of you, who was stepping off the step into the street.Mr. Lehmann: I think the witness answered that.She said she was in the middle of the car when the last passenger ahead of her had left the car.The Court: I understood her statement to be that at the time the last passenger who was ahead of her stepped off the car she was about the middle of the car.Mr. Stark: That is what I want to fully understand.I didn't understand that was what you meant, or whether the last passenger was in the doorway of the car, leaving the body of the car.Q.I would like to have you say what you intended to be understood on that subject.A.That was what I understood; that was what I said.Q.Repeat it please.A.That I was in the middle of the car when the last passenger was getting off.Q.When he was getting off the step, or getting out of the doorway of the car?Mr. Lehmann: I submit it is fully answered.(Last question repeated.)A.Whether they were in the doorway or on the step?Q. by Mr. Stark: Yes, at the time you were in the center of the car, yourself in the act of leaving.A.Yes; I was in the act of leaving just as they were leaving the door, going out of the door on the step, as they were getting off.Q.When you were in the middle of the car, in the act of leaving the car yourself, state where the passenger next ahead of you was.A.In the act of leaving the car; going out of the door."Abraham Siegel, a witness for plaintiff, testified that he was standing on the sidewalk on Seventh and Olive streets; that the car had stopped before the plaintiff stepped on the step to get off; that several passengers had gotten off of the car, and that just as the plaintiff stepped off of the lower platform, had one foot off the lower platform, the bell rang, the car started off, and plaintiff fell lenghtwise on the pavement.Charles J. Conway, another witness for plaintiff, testified: That he was standing in his store with a friend, looking out.That: "All at once I turned to this friend, and said: `Watch that lady fall.She is stepping off the wrong way.'"That the car was in motion at the time.That "it looked to me she was getting off as people always do when they get off the wrong way, the car being in motion.She walked straight down the steps.It impressed me at the time that would throw her."This was, in substance, the plaintiff's case as to how the accident occurred.Isaac B. Rosenthal testified for defendant that he was a passenger on the car; that the train stopped on the east side of Seventh street, and several passengers got off, and then the conductor rang the bell; that the plaintiff then rose from her seat, and started to the rear of the car; that the car was in motion while the plaintiff was still on the inside of it, and was moving slowly, as cars usually do when they start up; that the car had gone 15 to 20 feet when the plaintiff stepped off it while it was in motion, and that she fell or was thrown down in that way.John J. Austin, the conductor, testified that, after several passengers had gotten off of the train, he rang the bell, and the train started; that the plaintiff at that time was sitting on a seat on the south side of the car, and near its center; that, after the car had started, and had gone 4 or 5 feet, the plaintiff rose from her seat, and started hurriedly to the rear end of the car; that he shouted to her, "Stop, wait till the car stops," but she paid no attention whatever, and "walked straight out on the street off the car."Frank S. Riely testified for the defendant that he was a passenger on the car; that the car stopped at Seventh street, and several passengers got off; that, after the car had started, the plaintiff, who was sitting just across the car from him, got up, "went to the back platform, and stepped off while the car was in motion."Catherine McKenna testified for the defendant that: "After the car started up, this lady was sitting opposite me and she got up, and walked out of the door, and walked face forward out on the platform onto the street."Eliza J. McKenna testified for the defendant that the plaintiff was sitting between the center and the front end of the car; that "after the train had left Seventh street she got up and left the car; walked out of the car,—straight out; she didn't go with the car, nor she didn't go back, but just straight out,—of course, fell."This was all the testimony introduced in the case.The case was submitted to the jury upon instructions as to which there is no question raised here, but which authorized a verdict for the plaintiff if she attempted to get off the train, and, before she had time to do so, the train was suddenly started, and she was injured, and which properly stated the measure of her damages, and which authorized a verdict for the defendant if the plaintiff left the car while it was in motion.

Boyle, Priest & Lehmann, Lon O. Hocker, and Geo. W. Easley,...