Morris v. The Missouri Pacific Railway Company

• Decision Date: 29 March 1909
• Citation: 117 S.W. 687,136 Mo.App. 393
• Parties: MELVIN H. MORRIS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

117 S.W. 687

136 Mo.App. 393

MELVIN H. MORRIS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 29, 1909

Appeal from Pettis Circuit Court.--Hon. Louis Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

Roy D Williams and C. D. Corum for appellant.

(1) Now we recognize the well-settled rule that it is the province of the trial court to grant new trials where, in its opinion the verdict is against the weight of the evidence, and that it is the duty of such court to grant a new trial when the verdict is manifestly or clearly wrong, or when it appears to be the result of passion, prejudice, or corruption on the part of the jury. The books are full of authorities sustaining these propositions. (2) The doctrine is also firmly established in our jurisprudence, that in personal actions founded on tort, and sounding merely in damages, that a new trial cannot be granted on the sole ground of the smallness of the damages awarded. Edwards v Railroad, 82 Mo.App. 484; Pritchett v. Hewett, 91 Mo. 547; Watson v. Harman, 85 Mo. 443; Welsh v. McAlester, 15 Mo.App. 501; Brown v. Railroad, 51 Mo.App. 193, 29 Cyc. 849.

George F. Longan and Charles E. Yeater for respondent.

This appeal is from an order granting a new trial, and one of the grounds specified by the court in setting aside the verdict was the fifth ground of the motion for a new trial to the effect that the verdict was against the weight of the evidence, and the appellate courts of this State have uniformly held that they will not interfere with the discretion of the trial court in granting a new trial when based upon that particular ground. Hoepper v. Hotel Co., 142 Mo. 387; Brown v. Railroad, 51 Mo.App. 193.

OPINION

JOHNSON, J.

This suit is for damages alleged to have been caused by the discharge by defendant of sewage from its machine shops at Sedalia into a natural watercourse which flows through land of plaintiff in the vicinity of the shops. The trial resulted in a verdict for plaintiff in the sum of $ 1,000. Afterward, the court granted plaintiff a new trial on the following grounds stated in his motion:

"4th. Because the court erred in not more severely reprimanding counsel for defendant in his argument to the jury when such counsel discussed a proposition he had made in open court to have the jury go and inspect the watercourse on plaintiff's land and the sewage flowing thereon, which was not accepted by plaintiff, and when he further discussed the plan of the defendant and its intention to change the route of the sewer so that the same would be removed from plaintiff's land and no longer flow over the same, notwithstanding the defendant's offer to prove such plan and intention was refused by the court during the trial, whereby the jury received an erroneous impression as to the extent of the plaintiff's damages and have rendered a verdict influenced by the aforesaid intention and plan of defendant to remove the flow of said sewage across the plaintiff's land which may or may not be done.

"5th. Because the verdict is against the weight of the evidence as to the amount thereof, which said amount is so grossly inadequate and unfair and contrary to the evidence as to be plainly the result of prejudice and passion.

"6th. Because four of the jurymen went in person during the trial and examined the plaintiff's land and the status and conditions thereof with reference to the flow of sewage across the same, while the trial thereof was in progress."

Defendant appealed from the order granting a new trial.

We have reached the conclusion that in sustaining the motion on the fifth ground, the court acted within its authority and did not abuse the discretion, with which it was invested by law. In 1904 and 1905, defendant erected and began the operation of extensive machine shops near Sedalia which were provided with a sewer system. The waste oils and offensive matter discharged from the water closets were emptied into a sewer which terminated on defendant's land and emptied its contents into a natural watercourse. Plaintiff owned fifty-four acres of land near the shops. The tract is bisected by the watercourse and the evidence strongly supports the contention of plaintiff that the pollution of the stream was so great and so offensive that the whole tract was rendered unfit for any but agricultural uses. About eight hundred men were employed at the shops and the waterclosets provided for their use were all emptied into this sewer. The shops had capacity for the employment of from two thousand to twenty-two hundred workmen. All of the evidence of plaintiff is to the effect that the tract, owing to its location, possessed a value for residence purposes greatly in excess of its value for agriculture. The great mass of the expert evidence introduced by plaintiff fixes the market value of the land for residence lots at $ 300 per acre just before the installation of the sewer and at $ 100 per acre immediately after that event. The lowest estimate of any witness offered by plaintiff placed the damage at $ 100 per acre. All agreed that the land possessed no value for residence purposes with the offensive discharge from the sewer running across it. In addition to this opinion evidence, it appears that about the time in question, land on three sides of plaintiff's land was sold at prices ranging from $ 250 to $ 500 per acre. The evidence introduced by defendant tends to show that the offensive matter was so diluted with water when emptied into the sewer that before it reached the land of plaintiff, it had disintegrated and resolved into a greatly diluted, odorless and not unsanitary solution. The expert evidence of defendant varies as to the amount of damage plaintiff has sustained from the sewage. One witness stated that the land was not appreciably damaged; others say that $ 10 or $ 12 per acre would cover the damage. We regard the evidence of defendant as substantial, but perceive no reason for criticizing the conclusion of the learned trial judge that the great weight of the evidence supports the contentions of plaintiff, first, that his land possessed a...