Northrop v. Diggs
| Decision Date | 14 November 1905 |
| Citation | 91 S.W. 173,115 Mo.App. 91 |
| Parties | NORTHROP, Appellant, v. DIGGS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED AND REMANDED.
Order affirmed and cause remanded.
Bernard Greensfelder and Abbott & Edwards for appellant.
The discretionary power of the circuit court in granting and refusing new trials is subject to review by the appellate court. Hill v. Wilkins, 4 Mo. 86; Blanchard v Wolf, 6 Mo.App. 200; Richards v. Martin, 43 Mo.App. 597; Carr v. Dawes, 46 Mo.App. 598.
Wm. F Smith for respondent.
"It is the duty and prerogative of a trial court to grant one new trial when in its opinion the verdict is against the weight of the evidence (sec. 2241, R. S. 1889), and this court will never interfere in such cases unless the action of the court is purely arbitrary." Havan v. Railroad, 155 Mo. l. c. 230; Hinzeman v. Railroad, 182 Mo. 611; Summerville v. Stockton, 178 Mo. 121; Warner v Railroad, 178 Mo. 125; Ittner v. Hughes, 130 Mo. 688; Fitzjohn v. Railroad, 183 Mo. 78; Casey v. Transit Co., 186 Mo. 229; Ottomeyer v. Pritchett, 178 Mo. 160; Herndon v. Lewis, 175 Mo. 116; Hurley v. Kennearly, 186 Mo. 225.
A verdict was given for the plaintiff in this case, but the trial court set it aside on the ground that the evidence did not support it. An appeal was taken from the order setting aside the verdict and granting a new trial. In support of the appeal it is maintained that the ground on which the new trial was granted was, in effect, that there was no evidence to support the verdict. We do not so understand the court's order. The language used was: "The testimony does not support the verdict." It is possible to interpret that language to mean that there was no evidence to support the verdict; but in view of the fact that the record discloses ample evidence for a verdict in favor of either side, and evidence of a very conflicting character, the proper construction is that the trial court thought the evidence preponderated against the verdict; not that there was no evidence in favor of it. The meaning of this ground for a new trial was considered and adjudicated in Hull v. Railroad, 60 Mo.App. 593. In that case the language of the order for a new trial was: "The verdict is not supported by the evidence." This was held to mean that, in the opinion of the trial judge, the weight of the evidence was opposed to the finding of the jury. In Van Liew v. Barrett, etc., Co., 144 Mo. 509, 46 S.W. 202, the ground assigned for vacating the verdict was that it was not sustained by the evidence, and was contrary to the instructions. The ruling of the lower court was sustained on the first ground; which was treated as equivalent to a statement that the verdict was against the weight of the evidence.
On the assumption that the lower court ruled there was no evidence to support the verdict, the argument urged in the present case is that the defendant lost his...
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