Hawver v. Springfield Traction Co.

• Decision Date: 06 February 1911
• Citation: 154 Mo. App. 452,134 S.W. 70
• Parties: HAWVER v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

134 S.W. 70

154 Mo. A. 452

HAWVER v. SPRINGFIELD TRACTION CO.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. APPEAL AND ERROR (§ 979)—DISCRETION OF TRIAL COURT—GRANTING NEW TRIAL.

Discretion in granting one new trial, where the weight of the evidence is involved, will not be interfered with on appeal unless abused.

2. NEW TRIAL (§ 72)—INSUFFICIENCY OF EVIDENCE.

In an action against a street car company for damages caused by colliding with plaintiff's automobile, grant of new trial on the ground that the verdict for defendant was against the weight of the evidence held not an abuse of discretion.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by A. W. Hawver against the Springfield Traction Company. From an order granting a new trial on the ground that the verdict for defendant was against the weight of the evidence, defendant appeals. Affirmed.

Delaney & Delaney, for appellant. Mann, Johnson & Todd, for respondent.

NIXON, P. J.

This case is here on an appeal by defendant from an order of the circuit court of Greene county granting plaintiff a new trial on the ground that the verdict of the jury in favor of defendant was against the weight of the evidence.

The petition charges that plaintiff while operating his automobile on South street in the city of Springfield, Mo., and while attempting to get from South street into Pickwick street (or alley), stopped his machine on the east side of South street with the rear wheels across the track of the defendant's street railroad to permit certain vehicles to pass out of Pickwick alley; and while in said position, exercising due care on his part, the servants of the defendant in charge of one of its street cars negligently ran upon and greatly damaged said automobile, when said servants saw, or by the exercise of ordinary care might have seen, said automobile standing on said track in time to have avoided a collision by stopping said car. The prayer is for damages in the sum of $700.

The testimony of the plaintiff was that he conducted a jewelry store on South street, located a short distance from the intersection of South street and Pickwick alley; that on the morning in question he came north on South street in his automobile, and stopped the machine in front of his store, went into the store, came out and looked down South street for cars, and saw none, though one could see about 3 blocks; that he intended to go into Pickwick alley and backed his machine some 30 feet south; that this alley was narrow—15 feet wide between the curbs, and only 10 feet wide between the gutters where the water runs down into the gutter at each side"—and, as two vehicles were...