Lackland v. United Rys. Co. of St. Louis

• Decision Date: 06 February 1917
• Docket Number: No. 14563.,14563.
• Citation: 191 S.W. 1104,197 Mo. App. 62
• Parties: LACKLAND v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

191 S.W. 1104

197 Mo. App. 62

LACKLAND v. UNITED RYS. CO. OF ST. LOUIS.

No. 14563.

St. Louis Court of Appeals. Missouri.

Argued and Submitted January 3, 1917.

Opinion Filed February 6, 1917.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Josephine B. Lackland against the United Railways Company of St. Louis. There was a verdict for plaintiff, and from an order granting defendant new trial, plaintiff appeals. Affirmed, and cause remanded.

S. T. G. Smith, of St. Louis, for appellant. Boyle & Priest and S. P. McChesney, all of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff brought her action against the defendant, United Railways Company, averring that that was a corporation, organized and existing under and by virtue of the laws of this state, and that on May 16th, 1911, and for many months prior thereto, it had been engaged in operating a street railway on the streets of St. Louis, over which the defendant was, on May 16th, engaged in propelling passenger cars, and that on that date it was engaged in operating a passenger car carrying passengers for hire on the strip of track running east on Olive, a public street in the city of St. Louis, and that on that date plaintiff was a passenger on one of the cars of defendant, running east on Olive, having paid her fare; that defendant, on the date named, stopped its car upon which plaintiff was then riding, for the purpose of permitting passengers to alight; that plaintiff left her seat, proceeded to the rear platform of the car and while it was stopped attempted to alight from it, and that while she was in the act of alighting, the defendant, through its employés operating the car, carelessly and negligently started the car forward with a jerk, the car being carelessly and negligently started forward while plaintiff was in the act of alighting from it and by reason of this careless and negligent starting and jerking of the car, plaintiff was thrown forward, her ankle badly wrenched, one of the ligaments therein broken, her ankle permanently injured, and that she has suffered great bodily pain in consequence of the happening, to her damage in the sum of $2500.

Defendant, by its answer, denied each and every allegation in the petition.

On a trial before the court and a jury, plaintiff testified to the fact that she was a passenger on a street railroad car, running east from Taylor avenue and Olive, and that it was on this car that she received her hurt, as set out in her petition. She gave a particular account of the happening and of her injury and introduced a witness who claimed to have seen the accident and to have assisted plaintiff to the home of her father-in-law, she also introducing testimony of surgeons as to the extent and character of the injury. Defendant introduced no evidence but demurred. That being overruled, defendant stood on its demurrer.

At the instance of plaintiff the court instructed the jury that if they believed from the evidence that plaintiff boarded one of defendant's cars on its line of road and tendered a transfer duly issued by the defendant company for her fare, and that defendant, through its agents or employés stopped the car on which plaintiff was a passenger at the usual place for passengers to alight at the corner of Taylor and Olive streets, and that while it was so stopped plaintiff started to get off the car, and those in charge knew, or by the exercise of ordinary care and caution might have known, that plaintiff was in the act of alighting from the car and permitted it to be started before plaintiff had a reasonable time to alight therefrom and that by reason of the car being so started plaintiff was thrown down and injured, they should find for plaintiff, the instruction also covering the question of the amount of damages.

There was a verdict for plaintiff in the sum of $2000. Defendant thereupon filed a motion for new trial on the ground that the verdict was against the evidence, against the weight of the evidence, against the law and was excessive, and because the court erred in refusing to give the instruction in the nature of a demurrer and had erred in giving and reading to the jury erroneous, misleading and prejudicial instructions. Thereafter the motion for new trial coming on it was sustained by the court "because the verdict was against the evidence." From this plaintiff has duly appealed to our court.

We held in Raifeisen v. Young, 183 Mo. App. 508, 167 S. W. 648, that where the motion for new trial assigned as a ground that the verdict is against the evidence, that that is merely the statement in another form of another ground assigned that it is against the weight of the evidence, referring to decisions of the Courts of Appeals and of the Supreme Court in support of this, and we there held (183 Mo. App. loc. cit. 511, 167 S. W. 649) that the assignment, "that the verdict is against the weight of the evidence, is not a ground upon which the appellate court may interfere. In such a case, we can reverse the judgment only when there is no substantial evidence whatsoever to support the verdict."

It is argued by learned counsel for respondent, that the testimony of the only witness introduced by plaintiff in support of her account of the accident is in irreconcilable conflict with the testimony of plaintiff herself, and that the trial court, having the witnesses before it and hearing their testimony, is more competent to judge of the credibility of the witnesses than an appellate court can possibly be. We are not in a position, nor is it within our province as an appellate court, in an action at law, to pass on the weight of the evidence, nor to determine whether the testimony of plaintiff and her witness is so irreconcilable as to have influenced the mind of the trial court in sustaining this motion.

While the action of the court in sustaining the motion for new trial purports to be bottomed on the assigned ground that the verdict was against the evidence, that does not confine us to that assignment. If it appears from an examination of the record that the motion for a new trial should have been sustained on any other ground than that assigned by the court, it is the duty of our court to sustain the order. See Richardson v. Moffitt-West Drug Co., 92 Mo. App. 515, loc. cit. 537, in which we said:

"The appellate court will sustain the order if it can be done, either on the ground assigned or any other found in the record; but it cannot be sustained on a mere...