Schultz v. Metropolitan Street Railway Company
| Decision Date | 19 February 1912 |
| Citation | 144 S.W. 123,161 Mo.App. 574 |
| Parties | ANNA SCHULTZ, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
Judgment affirmed.
Ben T Hardin for appellant.
John H Lucas and Bruce Barnett for respondent.
This is an action by a passenger against a common carrier to recover damages for personal injuries alleged to have been caused by the negligence of the carrier. The answer is a general traverse. A trial of the issues resulted in a verdict for plaintiff for $ 2500. Defendant filed a motion for a new trial which contained a number of grounds, among them, the allegation that the verdict was against the weight of the evidence.
After hearing the motion argued the court took it under advisement and afterwards sustained it without stating in the order made of record the ground on which the motion was sustained. Plaintiff appealed and in the brief and argument of her counsel attempts to bring our notice occurrences relating to the disposition of the motion for a new trial which were not made matters of exception and, therefore, are not in the record. The gist of these alleged incidents is that the only grounds for a new trial argued by defendant were alleged errors of law committed at the trial and especially error in the instruction given at the instance of plaintiff on the measure of damages and that the omission from the order granting a new trial of a statement of the ground on which it was granted was not inadvertent but intentional, the trial judge refusing to give heed to plaintiff's demand that the ground be stated. We must follow the record and since plaintiff did not choose to incorporate therein these things she considers so important, we cannot give them any consideration and, looking to the record alone, must assume that the omission to state the ground for the ruling granting a new trial was inadvertent and not intentional.
We find in the record no error of law of a character or effect prejudicial to defendant. The only error in the briefs is that assigned against the following instruction: "If you find in favor of the plaintiff, then you will assess her damages at such an amount as you believe from the evidence will be a fair and just compensation to her for the injuries in question, if any, she received to her back, spine, her sides and limbs and her internal organs, and for shock, if any, to her nervous system, and all physical pain and mental anguish, if any, caused by such physical injuries, if any, and also, for any physical pain and mental anguish, if any, which she is reasonably certain to suffer in the future, in all, however, not to exceed the sum of five thousand dollars."
Counsel for defendant say in their brief: "The italicized portion of the instruction authorized the jury to compensate plaintiff for any future physical or mental pain which she will suffer in the future, without regard to whether such suffering may be the result of her fall from the street car or not." That objection is most hypercritical and does violence to the plain meaning of the instruction which, of course, must be read as a whole. No juror of ordinary intelligence could read that instruction without understanding that he could not award plaintiff any damages except those that were caused by the injuries she received in consequence of the pleaded negligence. We cannot assume that the jury were deficient in intelligence or were looking for a pretext to enlarge plaintiff's damages.
Plaintiff adduced substantial evidence in support of her alleged cause of action and the record discloses only one ground on which the trial court properly could have sustained the motion for a new trial, viz., that the verdict is against the weight of the evidence. We shall not give a detailed recital of the evidence. That of plaintiff tends to show that while she was alighting from the car which had stopped at a regular stopping place it suddenly started forward and threw her to the pavement and that she received injuries to her internal organs of a serious and permanent nature. The evidence of defendant contradicts that of plaintiff both as to the cause of her fall and as to the consequences thereof. If we were sitting as the triers of fact we would hold that the evidence of plaintiff, though substantial, was greatly outweighed as to both of the principal issues of fact by the opposing evidence and in the light of the record we must assume...
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