Schlaifer v. Omaha & Council Bluffs Street Railway Company

• Decision Date: 16 April 1915
• Docket Number: 18077
• Citation: 152 N.W. 370,98 Neb. 207
• Parties: REBECCA SCHLAIFER, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE
• Court: Nebraska Supreme Court

152 N.W. 370

98 Neb. 207

REBECCA SCHLAIFER, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE

No. 18077

Supreme Court of Nebraska

April 16, 1915

APPEAL from the district court for Douglas county: LEE S. ESTELLE and WILLIS G. SEARS, JUDGES. Affirmed.

AFFIRMED.

DeBord Fradenburg & VanOrsdel, for appellant.

John L Webster and W. J. Connell, contra.

MORRISSEY C. J. LETTON, ROSE and SEDGWICK, JJ., not sitting.

OPINION

MORRISSEY, C. J.

Plaintiff brought this action, alleging that, November 20, 1910, she was a passenger on one of defendant's street cars in the city of Omaha, and, while attempting to alight therefrom, at the regular stopping place at the intersection of Sixteenth street and Clark street, the car was suddenly started forward with a jerk, and she was thereby thrown violently to the pavement, suffering severe injuries, which are set out in detail in the petition. The answer denies that the car was started while plaintiff was in the act of alighting, but avers that after the car had passed beyond the regular stopping place the plaintiff voluntarily stepped from the car to the street while the car was moving, and that whatever injuries she sustained were the result of her own negligence, and denies all negligence or carelessness on its part. There was a verdict for plaintiff. A motion for new trial containing 21 separate assignments of error was filed. On hearing, this motion was sustained, the verdict set aside, and the cause set down for retrial. By leave of court plaintiff filed an amended petition, and the cause was again tried to a jury, and there was a verdict for defendant. Plaintiff then filed an alternative motion, praying: First, for judgment upon the verdict of the jury returned on the first trial, notwithstanding the order of the court granting a new trial; second, should the court refuse to enter a judgment on the first verdict, that it set aside the last verdict and grant a new trial of the case, assigning the usual grounds for new trial in causes of this character. This motion was overruled, judgment entered upon the last verdict, and the plaintiff appeals.

The errors relied upon are: First, setting aside the verdict and granting a new trial; second, refusal of the court to sustain plaintiff's motion for judgment upon the first verdict; and overruling the alternative motion to set aside the second verdict and grant a new trial. Taking up these assignments in their order: Did the court err in setting aside the first verdict?

The Code provides for the granting of a new trial by trial courts, and this provision is made for the purpose of affording the court an opportunity to correct errors in its own proceedings without subjecting the parties to the necessity of an appeal.

The record is silent as to the special reason for setting aside the verdict. The court has great latitude in the exercise of its discretion, and the universal holdings of this court are to the effect that this discretion will not be interfered with where it sets aside a verdict and grants a new trial, unless it is clearly shown that some legal right of the party against whom the order is made has been disregarded. Missouri P. R. Co. v. Hays, 15 Neb. 224, 18 N.W. 51; Sang v. Beers, 20 Neb. 365, 30 N.W. 258.

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