Hopkins v. City of Springfield

Citation147 S.W. 1099
PartiesHOPKINS v. CITY OF SPRINGFIELD.
Decision Date03 June 1912
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by H. F. Hopkins against the City of Springfield. From a judgment granting a new trial on the ground of the excessiveness of the verdict for plaintiff, he appeals. Affirmed.

F. T. Stockard, of Republic, and Frank B. Williams, of Springfield, for appellant. Leonard Walker, City Atty., and Fred. A. Moon, Asst. City Atty., both of Springfield, for respondent.

GRAY, J.

The plaintiff obtained a verdict in the circuit court of Greene county for $2,500 against the defendant city, and the court granted a new trial on the ground that the verdict was excessive, and plaintiff appealed.

The plaintiff claimed that he was injured by falling on a defective street crossing. At the time he was 46 years old and was a common laborer earning $2 per day. He testified that while walking on one of the streets of the defendant, and on account of the defective condition thereof, he fell, and, by the force of the fall, a nail was driven through the palm of his hand. In regard to the extent of his injuries, he testified that he could not use his hand as well as he could before he was injured, and that it still pained him and at times so severely that he was unable to sleep, and frequently was compelled, on account of the pain, to get out of bed and walk the floor; that for several weeks he was absolutely unable to perform any labor, and during all of said time suffered intense pain; that he afterwards tried to work, but was unable to. He exhibited his hand to the court and jury, and illustrated to what extent he could use it. His physician testified that the wound healed nicely, and while it would always be a "makeshift of a hand," and not as good as it was before the injury, he could not say it would continue to cause pain.

There was testimony that the nail, in passing through the hand, had broken a bone, and that small parts therefrom had to be removed. The defendant offered no testimony to contradict that offered by plaintiff relating to his injuries.

It has been frequently held by this and other appellate courts of the state that the order of the trial court granting a new trial will not be disturbed unless it is made clear from all the circumstances of the case that manifest injustice has been done, or that the discretion of the trial court has been abused, and a stronger case should be made to justify the interposition of the appellate court when a new trial has been granted than when it has been refused. Hawver v. Springfield Traction Co., 154 Mo. App. 452, 134 S. W. 70; Boulware v. Victor Automobile Co., 152 Mo. App. 567, 134 S. W. 7; Fair v. Preston, 157 Mo. App. 324, 138 S. W. 73; Chambers v. Elliott, 143 S. W. 521.

In Hawver v. Springfield Traction Co., supra, Judge Nixon said: "The law is that courts have large discretionary powers in granting one new trial, and an appellate court will not interfere with such discretion unless it appears to have been unwisely exercised —so unwisely as to amount to an abuse thereof."

The appellant admits the above to be the general rule, but says it only applies where there is a conflict in the evidence, but, where the evidence is all one way, the appellate court is in as good a position as the trial court was to review the action of the jury. This we concede to be correct and supported by authority. Bush v. M., K. & T. Ry. Co., 144 S. W. 1123. The rule does apply, however, not only where there is a conflict in the testimony, but where all the evidence is not before the appellate court.

In this case there was very important testimony before the trial court and jury that is not before us. We refer to plaintiff's hand. It was seen by the trial judge, who certainly had a much better...

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9 cases
  • Murphy v. Cole
    • United States
    • Missouri Supreme Court
    • December 18, 1935
    ... ... Haney, 190 Mo.App. 224; Parker ... v. Britton, 133 Mo.App. 270, 113 S.W. 259; Hopkins ... v. Springfield, 164 Mo.App. 686, 147 S.W. 1099; ... Allen v. Railroad Co., 167 Mo.App ... v. Olian, 59 S.W.2d 674; Ulmer v. Farnham, 28 ... S.W.2d 115; Wendel v. City Ice Co. of K. C., 22 ... S.W.2d 217; Raines v. Wilson, 239 N.W. 37; ... Mortrude v. Martin, ... ...
  • Van Hoose v. Southwestern Mach. Co.
    • United States
    • Missouri Court of Appeals
    • March 3, 1913
    ...Phillips, 158 Mo. App. 583, 138 S. W. 910; Hawver v. Springfield Traction Co., 154 Mo. App. 452, 134 S. W. 70; Hopkins v. City of Springfield, 164 Mo. App. 682, 147 S. W. 1099. The trial court should supervise the verdict of the jury, and grant a new trial if it is against the weight of the......
  • Hopkins v. City of Springfield
    • United States
    • Missouri Court of Appeals
    • June 3, 1912
  • McWilliams v. Missouri Pacific Ry. Co.
    • United States
    • Kansas Court of Appeals
    • June 2, 1913
    ... ... MISSOURI PACIFIC RY. CO., Respondent Court of Appeals of Missouri, Kansas City June 2, 1913 ...           Appeal ... from Jackson Circuit Court.--Hon. Jas. E ... reviewable, citing Burk v. M. K. & T. Ry. Co., 144 ... S.W. 1123, l. c. 1125; Hopkins v. City of ... Springfield, 147 S.W. 1099, l. c. 1100 ...          But, ... even if ... ...
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