Rigby v. St. Louis Transit Co.

• Decision Date: 30 December 1910
• Citation: 133 S.W. 110,153 Mo. App. 330
• Parties: RIGBY v. ST. LOUIS TRANSIT CO. et al.
• Court: Missouri Court of Appeals

133 S.W. 110

153 Mo. A. 330

RIGBY v. ST. LOUIS TRANSIT CO. et al.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

1. NEW TRIAL (§ 77)—VERDICT—VACATION— DUTY OF COURT.

Where a trial judge was convinced from what appeared on the trial that the verdict was the result of passion and prejudice of the jury, it was his duty in the exercise of discretion to set the verdict aside and grant a new trial, without authorizing a remittitur.

2. APPEAL AND ERROR (§ 979) — REVIEW — DISCRETION—SETTING ASIDE VERDICT.

An order setting aside a verdict for matters pertaining to the facts in the exercise of the court's discretion will not be reviewed, unless such discretion has been abused or was arbitrarily exercised.

3. APPEAL AND ERROR (§ 1015)—REVIEW— VACATION OF VERDICT.

Where but one new trial has been granted and the trial court has awarded it because of a decision of matters in pais, the verdict will not be reinstated on appeal, if there appears substantial evidence to sustain a verdict for the party to whom a new trial was awarded.

Appeal from St. Louis Circuit Court; M. N. Sale, Judge.

Action by Lottie M. Rigby against the St. Louis Transit Company and others. From an order setting aside a verdict and judgment in favor of plaintiff, she appeals. Affirmed.

Albert E. Hausman, for appellant. Boyle & Priest and T. M. Pierce, for respondents.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. The finding and judgment were for plaintiff, but the court set the verdict aside on defendant's motion, and from this order plaintiff prosecutes the appeal.

It appears plaintiff was injured on defendant's street car tracks at the point where the public crossing for pedestrians on Prairie avenue crosses the tracks in Florissant avenue. Both streets are public thoroughfares of the city of St. Louis. Defendant's car tracks run north and south about the center of Florissant, and Prairie avenue is said to cross Florissant from east to west. At the time of plaintiff's injury, defendant was reconstructing the bed of its tracks in Florissant avenue, and to that end had removed the surface of the street between the rails of the track and immediately adjacent thereto on the outside of the same. Plaintiff, a pedestrian, walked southward on Florissant avenue and turned to cross that street at the usual crossing place, but one of defendant's cars then discharging a number of passengers stood with its rear platform immediately upon the crossing where plaintiff desired to pass. Defendant had lodged several railroad ties at the point of the crossing for pedestrians, between the rails of its track where the surface was excavated, for the purpose of enabling persons to pass over the same. The evidence for plaintiff tends to prove that she approached the point of crossing and stood for a few seconds until the car there standing passed to the northward. Immediately upon the car moving forward, she stepped upon the track in progressing westward just as one of defendant's trackmen from the opposite side of the track threw a railroad tie from his shoulder into the excavation between the tracks, immediately before her. It seems defendant's servant, with the tie on his shoulder, was standing immediately on the west side of the car awaiting its departure, while plaintiff stood on the east. So standing, of course, the rear end of the car was between plaintiff and defendant's servant, and the view of each was obstructed so far as the other was concerned. The tie, upon being thrown by defendant's trackman into the excavation between the rails of the track, bounded and inflicted injuries upon plaintiff's knee and arm. There is evidence tending to prove that the injuries suffered by plaintiff are severe and permanent. But there is evidence for defendant tending to prove plaintiff's condition is the result of a rheumatic trouble which antedated the injury received from the rebound of the tie. Plaintiff testified one of her limbs was considerably enlarged about the knee as a result of the injury, but an eminent physician, commissioned by the court for the purpose, after an examination, gave testimony to the effect that he was unable to discover any measurable enlargement of the limb referred to, and that he found nothing indicating a permanent injury.

While there is ample evidence tending to prove defendant's servant was negligent in precipitating the tie forward upon the crossing for pedestrians, without making a careful observation after the car passed forward, as to whether persons were present and likely to be injured thereby, there is substantial evidence, too, to the effect that plaintiff was careless in her own conduct. The evidence shows that the car tracks were in the course of reconstruction, and that the excavation between the rails and between the two tracks of defendant was being filled with ties at the time, to enable persons to cross the same, and of this plaintiff was fully advised. In the circumstances stated, of course, it devolved upon her to exercise that degree of care which usually attends the conduct of an ordinarily prudent person in the same situation for...