Oliver v. St. Louis-San Francisco Ry. Co.

Citation211 S.W. 699
Decision Date09 May 1919
Docket NumberNo. 2394.,2394.
PartiesOLIVER v. ST. LOUIS-SAN FRANCISCO RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Action by Paul Oliver, administrator of the estate of George Adams, deceased, against the St. Louis-San Francisco Railway Company. Verdict for plaintiff, new trial granted defendant, and plaintiff appeals. Affirmed.

Hamlin & Hamlin, of Springfield, Seth V. Conrad, of Marshfield, and L. L. Collins, of Springfield, for appellant.

Neville & Gorman and Mann, Todd & Mann, all of Springfield, and J. D. Haymes and Dickey & Dickey, all of Marshfield, for respondent.

FARRINGTON, J.

This appeal is taken from the action of the trial court in granting a motion for a new trial. The facts sufficient for a determination of the issue raised on this appeal are: That the plaintiff was the duly appointed administrator of George Adams, deceased, who was killed on a railroad crossing in the city of Springfield, Mo. The deceased at the time was driving an automobile eastward, and was struck by a passenger train backing over this crossing. The case is bottomed solely on the humaniitarian doctrine. The proof to establish plaintiff's case tended to show that the servants in charge of defendant's train negligently operated said train in this: That they saw, or by the exercise of ordinary care could have seen, the deceased in a perilous position on the crossing in sufficient time to have, by the exercise of ordinary care, stopped or slackened the train and averted the injury.

The case was tried to a jury at the May term of court, 1917, resulting in a verdict for plaintiff in the sum of $2,500. A motion for a new trial was filed by the defendant, alleging five grounds: First, that the court erred in not sustaining a demurrer to the evidence; second, because the verdict was against the greater weight of the evidence; third, that the court erred in admitting evidence offered by plaintiff over the objection of defendant; fourth, that the court erred in excluding evidence offered by the defendant; fifth, because of newly discovered evidence.

At the same term the trial court sustained the motion for a new trial without assigning any reason therefor; and at the May term, 1918, the cause was again tried to a jury and resulted in a verdict for $3,500. A motion for new trial was again filed by the defendant—one of the grounds assigned as error being that the court erred in giving instructions requested by the plaintiff; and, second, that the verdict was the result of perjury or mistake committed by the witness Lloyd Blue. The trial court at that time sustained a motion for new trial, and assigned as a reason that the verdict was occasioned by perjury or mistake.

The record shows that the plaintiff introduced a witness at the first trial by the name of Lloyd Blue, whose testimony tended strongly to establish the negligence alleged in plaintiff's petition. After this trial, and while the motion for new trial was pending, the defendant company procured affidavits which tended to show that Lloyd Blue had not related the facts correctly in his testimony at the trial. On the second trial, Lloyd Blue not appearing as a witness at the trial, and it being shown that he was out of the state, the plaintiff, over the objection of the defendant, introduced the testimony taken at the former trial as to the manner in which the deceased was injured. It was also shown by affidavits that the witness Lloyd Blue had been served with a subpoena, at the request of plaintiff, to appear at the second trial. His testimony, therefore, went before the second jury, as it had gone before the first, which resulted in denying the defendant the right of cross-examination concerning the identical matter that affidavits filed with the court after the first trial tended to show a different state of facts to have existed to those to which Blue testified at the first trial and introduced in the second trial because of his absence.

To put the point to be decided by us on this appeal concisely, it is this: Was the trial court justified in granting a new trial for the reason that it believed that the verdict reached by the jury was the result of perjured testimony, or mistaken testimony, it having once before granted a new trial; wherein there were five grounds assigned in the motion, but none given in the order granting it? In other words, did the granting of a new trial at the former trial, without assigning any reason therefor, preclude the trial court from granting the new trial after the second trial on the ground of perjury or mistake; it being borne in mind that there were five grounds assigned in the motion for new trial filed by the defendant after the first trial, none of which assigned perjury or mistake as a reason for setting aside the judgment?

It is a rule in Missouri, needing no citation of authorities to support it, that the trial court is given a wide discretion in passing on motions for new trials which, when exercised, is not interfered with by appellate courts, unless it is shown that the granting of the same is in direct conflict with the established law, or is the result of judicial indiscretion.

Section 2022, Revised Statutes of Missouri 1909, provides among other things, that a new trial may be granted where the court is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by such matters, and that the party has a...

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    • United States
    • Missouri Supreme Court
    • 19 Diciembre 1935
    ...S.W. 835; Columbia Taxicab Co. v. Englebrecht, 247 S.W. 239. (c) The instruction assumes various material controverted facts. Oliver v. Railroad Co., 211 S.W. 699; Weddle v. Tarkio Electrical Co., 230 S.W. Zini v. Term. Railroad Assn., 235 S.W. 86; Glaser v. Rothschild, 221 Mo. 180; Barr v.......
  • Milburn v. Chicago, M., St. P. & P. R. Co.
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    • 31 Diciembre 1932
    ...Crow v. Houck's Mo. & Ark. Ry. Co., 212 Mo. 589; Henson v. Kansas City, 210 S.W. 13; Hunt v. St. Louis, 211 S.W. 673; Oliver v. St. Louis-S. F. Ry. Co., 211 S.W. 699. The verdict is excessive, and is so excessive as to show that it is the result of bias and prejudice on the part of the jury......
  • Jones v. Pennsylvania R. Co.
    • United States
    • Missouri Supreme Court
    • 3 Julio 1944
    ... ... 1939, in ... granting a second trial. King v. Mann, 315 Mo. 318, ... 286 S.W. 100; Oliver v. St. Louis-S.F. Ry. Co., 211 ... S.W. 699. (3) The trial court ruled that the verdict of the ... 2d 79; Weaver v. Mobile & O.R. Co., 343 Mo ... 223, 120 S.W. 2d 1105; Cole v. St. Louis-San Francisco R ... Co., 332 Mo. 999, 61 S.W. 2d 344; Kasperski v ... Rainey (Mo. App.), 135 ... ...
  • Kerosene Motor & Tractor Co. v. Douglass
    • United States
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    • 8 Mayo 1922
    ... ... Abstract of the record; Orris v ... Chicago R. I. & P. Ry. Co., 214 S.W. 124; Oliver v ... St. Louis San Francisco Ry. Co., 211 S.W. 699; Gunn ... v. Hemphill Lumber Company, 218 ... ...
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