Stark v. Bingaman

• Decision Date: 26 June 1920
• Docket Number: No. 13672.,13672.
• Citation: 223 S.W. 946
• Parties: STARK v. BINGAMAN et ux.
• Court: Missouri Court of Appeals

223 S.W. 946

STARK v. BINGAMAN et ux.

No. 13672.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

"Not to be officially published."

Action by Eunice M. Stark against J. B. Bingaman and wife. From an order granting a new trial after verdict in her favor, plaintiff appeals. Affirmed.

Jacobs & Henderson, of Kansas City, for appellant.

Humphrey, Bosley & Reeves, of Kansas City, for respondents.

TRIMBLE, J.

Plaintiff, while crossing an avenue at a street intersection, claims to have been run against and injured by the defendant in the driving of the latter's automobile. She brought suit for damages, alleging that defendant carelessly and negligently operated her car at a high and dangerous rate of speed, negligently failed to give any warning of the approach of said car, and that defendant saw, or by the exercise of ordinary care could have seen, plaintiff in a position of peril in said street in time by the exercise of care and caution to have stopped the car and avoided striking plaintiff, but negligently failed to do so. The answer was a general denial. A trial was duly had, resulting in a verdict for plaintiff in the sum of $1,000. The trial court sustained defendant's motion for new trial, but assigned no reason therefor. The plaintiff appealed from that order.

As the court did not specify the ground upon which it sustained the motion for new trial; therefore all of the grounds specified in the motion may be looked to in order to ascertain whether the court's action can be justified, and, if the new trial was properly granted upon any ground designated therein, the order granting the new trial should not be reversed. Laclede Land, etc., Co. v. Epright, 265 Mo. 210, 218, 177 S. W. 386. The motion for new trial contained several assignments of error, among them that the verdict was against the weight of the evidence; that the verdict was excessive; that the court erred in the admission and exclusion of evidence and in the giving of instructions for plaintiff. And the rule that the appellate court must look to every ground in the motion where no reason for the new trial is stated, includes, of course, the one that the verdict is against the weight of the evidence. Jiner v. Jiner, 182 Mo. App. 153, 159, 168 S. W. 231. The right to say whether the verdict is against the evidence and to grant one new trial for that reason is peculiarly within the province of the trial court who...