Phillips v. Shaw

• Decision Date: 14 September 1964
• Docket Number: No. 2,No. 50264,50264,2
• Citation: 381 S.W.2d 768
• Parties: Estelle PHILLIPS, Appellant, v. William SHAW, Respondent
• Court: Missouri Supreme Court

Page 768

381 S.W.2d 768

Estelle PHILLIPS, Appellant, v. William SHAW, Respondent.

No. 50264.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1964.

Bernard Susman, St. Louis, for appellant.

Burton H. Shostak, Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.

PRITCHARD, Commissioner.

Plaintiff sued defendant for $25,000.00 damages for personal injuries to her legs which she claimed were caused by an object propelled by a rotary power lawn mower alleged to be owned and under the control of defendant. The case was submitted to the jury upon the doctrine of res ipsa loquitur. The tiral resulted in a judgment upon a verdict for defendant. Plaintiff appealed from the judgment after her motions for new trial were overruled by the trial court.

For the purposes of passing upon the points raised by plaintiff on this appeal we shall assume that she made a submissible case. Defendant offered no evidence in the trial but stood upon his motions for directed verdict made at the close of plaintiff's case and again at the close of the whole case.

Plaintiff's first point is that the refusal of the trial court to grant her a new trial on the ground that the verdict of the jury was so much against the evidence and the weight thereof amounts to an abuse of discretion. Such point is without merit and is overruled. See the leading case of Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, where the verdict of the jury was in defendant's favor, as here. The court said, loc. cit. 560, 'The law is too well settled to need citation of authority that it was within the exclusive province of the trial court to determine whether or not this verdict was against the weight of the evidence. One of the grounds set up in plaintiff's motion for new trial was that the verdict was against the weight of the evidence. The trial court determined that question when it overruled the motion and refused to grant plaintiff a new trial. We are powerless to interfere with that ruling because we have no authority to pass upon the weight of the evidence.' See also White v. Rohrer, Mo., 267 S.W.2d 31, 34[1, 2]; Scott v. Gray, Mo., 337 S.W.2d 38, 41[2, 3], and Bowe v. Kehr, Mo., 345 S.W.2d 224, 225.

By Point 2 plaintiff complains for several reasons of the giving of Instruction No. 4 on behalf of defendant. That instruction reads:

'The Court instructs the jury that in deliberating upon the case, it is your duty to decide first whether or not, under all the facts and circumstances in evidence, under the instructions of the Court, plaintiff is entitled to recover against defendant. Until this question has been determined by you, you have no right to consider the amount, if any, of plaintiff's damages.

'Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case, for it is your sworn duty to try this case and to decide it impartially, according to the evidence and the instructions of the Court.

'Neither are you permitted to base a verdict entirely and exclusively on mere guesswork, and if upon the whole evidence in the case, fairly considered, you are not able to make a finding that defendant, William Shaw, was negligent without resorting to guesswork outside of and beyond the scope of the evidence, and the reasonable inferences deducible therefrom, then it is your duty to and you must return a verdict for defendant.'

Plaintiff says that in the first paragraph of Instruction No. 4, the sentence 'Until this question has been determined by you, you have no right to consider the amount, if any, of plaintiff's damages' in effect removes from the jury's consideration in this res ipsa loquitur case the nature and extent of injury. The jury would of course be entitled to consider plaintiff's injury in the determination of the issue of negligence. We do not, however, construe the clause as limiting or removing that factor. See West v. St. Louis Public Service Co., 361 Mo. 740, 236 S.W.2d 308, 310, where a similar contention was made, and the court said that a like instruction as here must be read together with the damage instruction (as here), and 'When they are, we do not believe that a jury of ordinarily intelligent laymen, who should be credited with common sense and reasonable discernment, would understand 'amount of damages' to mean 'nature, character or extent of injuries.'' The instruction does not remove from the consideration of the jury the facts and circumstances submitted in plaintiff's verdict directing Instruction No. 1. It does not...