Hopkins v. City of Springfield
| Citation | 147 S.W. 1099,164 Mo.App. 682 |
| Parties | H. F. HOPKINS, Appellant, v. CITY OF SPRINGFIELD, Respondent |
| Decision Date | 03 June 1912 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Greene Circuit Court--Hon. Aldred Page, Judge.
AFFIRMED.
Judgment affirmed.
F. T Stockard and Frank B. Williams for appellant.
(1) The discretion of the trial court in granting a new trial is properly exercised only when there is contradictory or conflicting evidence. Bohle v. Merc. Co., 114 Mo.App. 439; Casey v. Transit Co., 186 Mo. 229; Bank v. Wood, 124 Mo. 76; Wells v. Andrews, 133 Mo. 667. (2) The amount of damages to be awarded to plaintiff as compensation for such injury is a matter exclusively within the province of the jury to determine. We have no other scales with which to estimate human suffering or value personal injury, than the intelligence of a jury guided by a sense of justice. 29 Cyc. 844; Merrill v. St Louis, 12 Mo.App. 466; Goetz v. Ambs, 27 Mo 27; Wells v. Sanger, 21 Mo. 354; Watson v. Harmon, 85 Mo. 446. (3) This rule is subject to but one qualification in personal injuries cases, to-wit, that where the evidence is conflicting and the damages awarded are so manifestly and flagrantly excessive as to indicate at first blush that the jury either disregarded the evidence or acted from passion, bias or prejudice, the trial court may set the verdict aside. 29 Cyc. 842, 843, 849; 2 Sedgwick on Damages (7 Ed.), 660; Welch v. McAllister, 13 Mo.App. 89; Fairgrieve v. Moberly, 29 Mo.App. 153; Brown v. Railroad, 51 Mo.App. 192; Pritchard v. Hewitt, 91 Mo. 547; Goetz v. Ambs, 27 Mo. 28; Richardson v. Firebrick Co., 122 Mo.App. 529; Saller v. Shoe Co., 130 Mo.App. 729; Waechter v. Railroad, 113 Mo.App. 281; McCarty v. Transit Co., 192 Mo. 396; Fischer v. St. Louis, 189 Mo. 567. (3) While it is the rule that the granting of a new trial on the ground of excessive damages is so entirely within the discretion of the trial court that an appellate court will interfere only in the very clearest case of an abuse of that discretion. Morris v. Railroad, 136 Mo.App. 399; Friedman v. Pub. Co., 102 Mo.App. 683; Scheutte v. Transit Co., 108 Mo.App. 186; Choquette v. Railroad, 152 Mo. 266; Fitzjohn v. Transit Co., 183 Mo. 74; Lee v. Pub. Co., 137 Mo. 392. (5) The rule applies only in those cases where the facts in evidence do not justify any other conclusion than that the jury was influenced by passion and prejudice. Hollenbeck v. Railroad, 141 Mo. 97; Perrette v. Kansas City, 162 Mo. 238; Mitchell v. Railroad, 125 Mo.App. 1, or where there is a conflict in the testimony and substantial evidence touching the issue appears in favor of the party to whom the new trial is awarded. Warner v. Railroad, 178 Mo. 125; Ordelheide v. Land Co., 208 Mo. 243; Bush v. Railroad, 144 S.W. 1123; Loftus v. Railroad, 220 Mo. 470; Rigby v. Transit Co., 153 Mo.App. 330. (6) And when it clearly appears as it does in this case that a wise discretion has not guided the trial court's action in granting a new trial, the appellate court should interfere and reinstate the verdict. Loevenhart v. Railroad, 190 Mo. 346; Bush v. Railroad, 144 S.W. 1123; Ordelheide v. Barger, 208 Mo. 239; Fitzjohn v. Transit Co., 183 Mo. 78. (7) When the judge placing himself in the jury box, finds that the verdict could have been honestly made, the verdict must stand. McGraw v. O'Neil, 123 Mo.App. 691. (8) For it is with great hesitation that the courts will invade the province of the jury and interfere with a verdict for damages sounding in tort for personal injuries. Drover v. Railroad, 100 Mo.App. 337; Fischer v. St. Louis, 189 Mo. 579; Devoy v. Transit Co., 192 Mo. 221; Edwards v. Railroad, 82 Mo.App. 484; Brown v. Railroad, 51 Mo.App. 193; Morris v. Railroad, 136 Mo.App. 397.
Leonard Walker, city attorney, Fred A. Moon, assistant city attorney, and Perry T. Allen for respondent.
(1) The granting of a new trial addresses itself to the sound discretion of a trial judge, and in its exercise the court is not confined to the grounds enumerated by statute, but he is empowered to grant a new trial on his own motion, whenever he thinks the ends of justice require it, and appellate courts will not disturb the ruling of a trial judge, unless it is plain that the trial judge abused that discretion. Railroad v. Martin, 32 Mo.App. 597; Wright v. Railroad, 20 Mo.App. 481; Fretwell v. Laffon, 77 Mo. 28; Fair v. Preston, 138 S.W. 73; Findley v. Railroad, 141 S.W. 866. (2) The trial judge has opportunities of observation that the appellate court does not. It often happens that there are circumstances that influence the trial court, which cannot be transferred into cold type, the manner of the witnesses on the stand, the interest in the result of the trial, their prejudice, etc., all of these should induce the greatest caution in overturning the decision of trial judge in granting a new trial. State ex rel. v. Griffith, 63 Mo. 545; Casey v. Transit Co., 186 Mo. 229; Coleman v. Cole, 158 Mo. 257; McCullouch v. Insurance Co., 113 Mo. 606. (3) If it appears to the trial judge the jury was influenced by passion, prejudice or improper motives in rendering the verdict, and their finding is clearly against the weight of the evidence, it is the duty of the trial judge to promptly set aside the verdict and grant a new trial. Bank v. Armstrong, 92 Mo. 265; McCoy v. Underwood, 47 Mo. 187; McDonough v. Nicholson, 46 Mo. 35; Eidenmiller v. Kump, 61 Mo. 340; Partello v. Railroad, 217 Mo. 645; Etlinger v. Kahn, 134 Mo. 497; Fitzjohn v. Transit Co., 183 Mo.App. 68. (4) Appellate courts defer to the ruling of trial courts in the matter of granting new trial. Eidenmiller v. Kump, 61 Mo. 342; McDonough v. Nicholson, 46 Mo. 35; Bank v. Armstrong, 92 Mo. 281.
The plaintiff obtained a verdict in the circuit court of Greene county, for $ 2500, 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 forty-six years old, and was a common laborer, earning two dollars 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 "make-shift 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., 134 S.W. 7; Fair v. Preston, 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 opportunity to observe the extent to which its use was impaired by the injury complained of, than we are. We have only the language of the witnesses describing the injury, while the trial judge had the injury itself before him. As said by the Supreme Court in Furnish v. Railroad, 102 Mo. 438, 13 S.W. 1044: "Many cases arise in which, at this distance from the trial court room, we feel ourselves disposed to defer to the action of the circuit judge on this point, and to resolve any reasonable doubts on the subject in favor of the correctness of his ruling approving the finding.
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