Loevenhart v. Lindell Ry. Co.

• Decision Date: 03 July 1905
• Citation: 190 Mo. 342,88 S.W. 757
• Parties: LOEVENHART v. LINDELL RY. CO.
• Court: Missouri Supreme Court

88 S.W. 757

190 Mo. 342

LOEVENHART v. LINDELL RY. CO.

Supreme Court of Missouri, Division No. 2.

July 3, 1905.

1. APPEAL — REVIEW — GRANT OF NEW TRIAL.

The action of a trial court in granting a new trial because he believes injustice has been done through the rendition of an inadequate verdict in an action for damages will only be interfered with by the appellate court when the exercise of unwise discretion in such action is clearly shown.

2. NEW TRIAL — PERSONAL INJURIES — INADEQUATE VERDICT.

Where, in an action against a street railway for injuries inflicted on plaintiff, a passenger on one of defendant's cars, by its employés, the evidence tended to show that plaintiff was struck on the head by defendant's motorman with an iron controller, and struck on the face by the conductor of the car, and thrown therefrom into the street, receiving a scalp wound four inches long on the head, and severe bruises on the side of his body, there was nothing to indicate an unwise discretion on the part of the trial court in setting aside as inadequate a verdict for plaintiff for one dollar.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Jacob Homer Loevenhart against the Lindell Railway Company. Judgment for plaintiff, and, from an order granting plaintiff a new trial, defendant appeals. Affirmed.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. Nathan Frank, Richard A. Jones, and Max W. Oliver, for respondent.

GANTT, J.

This is an appeal from the order of the circuit court of the city of St. Louis granting a new trial to the plaintiff.

The action was begun September 16, 1897, and on January 6, 1898, plaintiff filed an amended petition, wherein he states, in substance, that on the 23d day of July, 1897, he entered one of the defendant's cars for the purpose of being transported as a passenger from Seventh and Washington avenue to his home, and defendant agreed, and it became its duty, as a common carrier, to well and safely carry and transport plaintiff from said Seventh and Washington avenue to his place of destination on said line of cars; but that the defendant, in violation of its contract aforesaid, and unmindful of its duty, failed to safely carry the plaintiff, but, on the contrary, while upon said car as such passenger, plaintiff was wickedly, brutally, and unlawfully assaulted by the conductor and motorman of said car, and forcibly ejected therefrom, and by said assault plaintiff was bruised and marked for life; that he has suffered great pain in mind and body, and laid out and expended considerable sums of money for physicians, surgeons, and medicine, to his damage to the sum of $5,000, wherefore he prays judgment for said sum of $5,000, his actual damages, and $5,000 punitive damages, and costs. Defendant in its amended answer denies each and every allegation in the amended petition; and for another defense stated that at the time of the commission of the alleged grievance plaintiff entered the car in a drunken condition, and, with two companions, took seats in the car, and the plaintiff then and there began to vomit upon the side, seats, and floor of said car, and the conductor thereof, quietly and without unnecessary force, removed plaintiff to the rear platform of said car, so that he could vomit over the side of the car, and not befoul the same to the disgust and inconvenience of the passengers then upon or thereafter to come upon said car. When plaintiff had been removed to the rear platform, his two companions followed, and, after using loud, profane, and threatening language toward the conductor, plaintiff and his two companions began to assault, strike, and beat said conductor, and, except for his acts in self-defense, and with the assistance of the motorman, said conductor would have suffered great bodily harm, and that defendant's said servants only acted in necessary self-defense against the assault of said plaintiff and his two companions, and in putting said plaintiff off of the car for his said misconduct they used no more force than was necessary. The reply was a general denial. The cause was tried before a jury on the 4th of May, 1902, and resulted in a verdict for plaintiff, assessing his actual damages at one dollar. No punitive damages were given. A motion for a new trial was filed in due time, assigning, among other reasons, that the verdict was against all instructions of the court, and on this ground the court set aside the verdict of the jury and granted a new trial. It is from this order that the appeal is now here, and the only question is the propriety of the action of the court in granting plaintiff a new trial.

The evidence tended to prove that on July 23, 1897, about 9:30 o'clock in the evening, the plaintiff with two companions boarded a street car operated by the appellant company in St. Louis. They took their seats, they paid their fare to the conductor in charge, but soon thereafter the plaintiff was taken sick and began to vomit. The testimony of appellant witness was to the effect that the plaintiff vomited on the...