Noble v. Kansas City

• Decision Date: 01 July 1909
• Citation: 120 S.W. 779,222 Mo. 121
• Parties: NOBLE v. KANSAS CITY.
• Court: Missouri Supreme Court

120 S.W. 779

222 Mo. 121

NOBLE v. KANSAS CITY.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

1. NEW TRIAL (§ 75) — GROUNDS — INADEQUATE DAMAGES.

Where a verdict granting nominal damages was inadequate, it is no ground for refusing a new trial that the petition did not state a cause of action, especially where the evidence shows that a cause of action exists; plaintiff being entitled to amend his petition.

2. APPEAL AND ERROR (§ 1015) — REVIEW — NEW TRIAL — DISCRETION OF COURT.

The determination of the weight of evidence in passing upon a motion for a new trial rests in the discretion of the trial court, the exercise of which will not be disturbed in the absence of abuse.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Personal injury action by T. M. Noble against the city of Kansas City. There was a verdict for nominal damages. A new trial was granted, and defendant appeals. Affirmed.

This action was instituted to recover $10,000 damages for personal injuries, alleged to have been sustained by plaintiff by stepping in an unguarded excavation in one of the public streets of Kansas City. A trial was had before the court and a jury, which resulted in a verdict and judgment in favor of plaintiff for one cent. In due time plaintiff filed a motion for a new trial, and among other grounds assigned therein was that the damages assessed were inadequate to the injuries sustained by plaintiff, and was against the weight of the evidence. In due course the court took up the motion, and, after due consideration, sustained it, because of the inadequacy of the verdict, etc. From the order of the court granting the new trial the defendant appealed to this court.

The evidence for plaintiff tended to show that while he was walking along Thirty-First street, near Cherry street, in Kansas City, on a dark night, he stepped into a deep, unguarded hole, which had been there and in that condition for several days, and that in consequence thereof he was thrown violently to the ground, and thereby sustained a fracture of his right leg below the knee. The defendant's evidence tended to show that there was no hole in the street at the time the injury is alleged to have occurred; and in point of fact plaintiff was not injured at all.

Edwin C. Meservey, W. H. H. Piatt, and John T. Hardings, for appellant. Basil P. Finley, Leslie J. Lyons, Hoyt A. Poorman, and E. W. Shannon, for respondent.

WOODSON, J. (after stating the facts as above).

1. It is first insisted by counsel for the city that the petition did not state a cause of action, and for that reason the court should not have sustained the motion for a new trial. That insistence presents a novel proposition. Our reports are full of cases showing where this court has reversed the judgment and remanded the cause because the petition did not state facts sufficient to constitute a cause of action against this defendant; but this is the first time in the history of our jurisprudence when that...