Settles v. McGinley

• Decision Date: 09 May 1927
• Docket Number: No. 15812.,15812.
• Citation: 296 S.W. 846
• Parties: SETTLES v. McGINLEY et al.
• Court: Missouri Court of Appeals

296 S.W. 846

SETTLES v. McGINLEY et al.

No. 15812.

Kansas City Court of Appeals. Missouri.

May 9, 1927.

Rehearing Denied June 6, 1927.

Certiorari Denied June 29, 1927.

Appeal from Circuit Court, Cooper County; H. J. Westhues, Judge.

Action by B. F. Settles, guardian of Virginia Roberts, a minor, against Francis McGinley and another. From an order sustaining plaintiff's motion for new trial and denying defendants' motion to set aside the order, defendants appeal. Affirmed.

Jones & Jones, of Sedalia, George D. Brownfield, of Boonville, and D. E. Kennedy, of Sedalia, for appellants.

J. T. Montgomery and George F. Longan, both of Sedalia, and Roy D. Williams, of Boonville, for respondent.

ARNOLD, J.

This is an action in damages instituted by B. F. Settles, guardian of Virginia Roberts, a minor ten years of age, for personal injuries alleged to have been received by her by being knocked down by one of defendants' trucks, which was being driven by an employee of defendants. At the time of the accident defendants were engaged in the retail grocery business in the city of Sedalia, Mo., and, in connection therewith, owned and operated a number of delivery trucks.

The suit originated in Pettis county, but was tried in the circuit court of Cooper county, at Boonville. Although the record fails to disclose the method by which the case was taken to Cooper county, it may be concluded that it went there on a change of venue, the question not being raised.

The record shows there were filed in the case an original and two amended petitions, and that the cause was tried on the second amended petition, which alleged that on the 31st day of August, 1925, while Virginia Robberts was crossing 16th street in the city of Sedalia, a public thoroughfare, one Arley Hatfield, in the employ of defendants, in charge of and operating one of its delivery trucks, which he was driving at a high and dangerous rate of speed, under the circumstances, negligently failed to slow down or to give any warning to plaintiff of his approach, and recklessly drove said delivery truck over and upon plaintiff as she was crossing said street and using due care and caution under the circumstances; that she was knocked down, and sustained injuries as follows: A bone of her left leg below the knee was broken, the flesh and tendons of that leg were lacerated and torn, and her body was bruised; the bridge of her nose was broken, and the sight of her left eye greatly impaired or destroyed; that by reason of her said injuries she has suffered great bodily pain and mental anguish, and has been disfigured for life. Judgment was sought in the sum of $7,500.

The answer to said second amended petition was a general denial and a plea of contributory negligence, as follows:

"For further answer herein, these defendants say that, if said plaintiff, Virginia Roberts, was injured as she alleges, such injury was proximately caused, and contributed to by her own negligence, in that she failed to exercise ordinary care in crossing Sixteenth street from the south side thereof to the north side between Quincy on the east and Stewart avenue on the west, at the time of said alleged injury, and that, but for the negligence and failure to use ordinary care, the alleged injury would not have happened."

The cause was tried to a jury, and a verdict was returned for plaintiff in the sum of $1,000. Plaintiff then filed motion for a new trial, in which it was alleged, among other things, that the verdict was inadequate. The motion was sustained upon the ground that "the verdict was inadequate under the evidence."

Defendants excepted to said order sustaining the motion for a new trial, and filed motion to set the same aside, which the court overruled, and from the order granting plaintiff a new trial and refusing defendants' motion to set aside said order defendants have appealed.

The only question presented for our determination is whether the trial court erred in sustaining plaintiff's motion for a new trial under the evidence presented. Defendants insist that, as the jury returned a verdict for plaintiff in a substantial amount, and as it was peculiarly within the province of the jury to weigh the evidence and assess the amount of damages the court was in error in. sustaining plaintiff's motion for a new trial upon the grounds assigned. Defendants' position in this respect reflects the general rule, but the statutes and the case law of this state have invested the trial court with certain discretionary powers in the matter of granting new trials. The statute (section 1454, R. S. 1919) provides:

"Only one new trial shall be allowed to either party except: First, where the triers a the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted."

Construing this statute the court held in Haven v. Railway, 155 Mo. 216, 55 S. W. 1035, that the grounds upon which an appellate court will interfere on appeal from...