Stetzler v. Metropolitan St. Ry. Co.

• Decision Date: 01 April 1908
• Citation: 210 Mo. 704,109 S.W. 666
• Parties: STETZLER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

109 S.W. 666

210 Mo. 704

STETZLER v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

April 1, 1908.

1. APPEAL — REVIEW — DISCRETION — ORDER GRANTING NEW TRIAL.

An order granting plaintiff a new trial in the discretion of the trial judge will be sustained, particularly when the case turns on the weight of the evidence or on the conduct of counsel at the trial, if it appears that the court in granting a motion acted on grounds peculiarly within its discretion.

2. NEW TRIAL — GROUNDS — MISCONDUCT OF COUNSEL.

Plaintiff sued for injuries in alighting from a street car, and testified that the car started before she had time to alight, and threw her to the street. She also stated that when she got off another man with a grip was coming hastily behind her, but there was no evidence that this man jostled her, or in any way contributed to her fall. Defendant's counsel in argument stated that plaintiff did not dare place her physician on the stand, as she knew he would testify, "as he has testified in this case, that the plaintiff told him she had been pushed off the car by a young man with a suit case." Plaintiff's objection to such argument was overruled, the court stating that the jury would remember the evidence, and plaintiff's request that counsel be reprimanded and that the stenographer's notes be read to the jury was also refused. Held, that plaintiff being the only witness in her own behalf as to the cause of the action, such misstatement constituted proper ground for a new trial.

3. TRIAL — INSTRUCTIONS — CREDIBILITY OF WITNESSES.

The court charged that plaintiff was a competent witness in her own behalf, and that the jury should consider her testimony in making up their verdict, but in determining its weight the jury should consider that she was the plaintiff testifying in her own behalf and her interest in the result of the suit; that whatever statements she made against her interest must be regarded as true; and that what she might say in her own favor should be taken as true or false as the jury might believe the same in consideration of all the evidence. Held, that such instruction was erroneous as calling the jury's attention to the weight of the testimony of a single witness, and also as charging that plaintiff's evidence against her interest must be regarded as true, whether deliberately or thoughtlessly given, while everything testified to in her favor should be scrutinized with care.

4. SAME.

An instruction on the weight to be given to the testimony of witnesses should be limited to a general instruction that in weighing the evidence the jury should consider the interest, if any, the witnesses have, their demeanor on the stand, etc.

5. SAME — APPLICABILITY TO EVIDENCE.

Where, in an action for injuries to a street car passenger, there was no evidence of contributory negligence, an instruction that she could not recover if she was negligent, or her negligence directly contributed to her injury, was erroneous.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Amanda Stetzler against the Metropolitan Street Railway Company. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

John H. Lucas, Ben F. White, and F. G. Johnson, for appellant. C. E. Burnham, Kelley, Brewster & Buchholz, and W. E. Burnham, for respondent.

VALLIANT, P. J.

This is a suit for damages for personal injuries alleged to have been received by the plaintiff as the result of the negligent starting of a street car on which she was a passenger while she was in the act of alighting therefrom. The only witness for the plaintiff to the accident was the plaintiff herself. Her testimony was to the effect: That she was a passenger on the car. It stopped at the intersection of Ninth and Main streets to allow passengers to alight. That she was in the act of getting off the car, had gone out on the rear platform, had stepped down on the lowest step of the car. "I got my foot in the air ready to step off, and the car went with a jerk and threw me." She stated that there were two men getting off the car at that time. One was a young man with a grip. He had asked the conductor about going to the Union Depot, and when the car stopped he got off before plaintiff. The other got off after her. The other evidence in plaintiff's behalf related to the nature of her injuries. The testimony on the part of the defendant was to the effect that the plaintiff alighted safely from the car and advanced to the sidewalk, and after getting on the sidewalk tripped and fell. The trial resulted in a verdict for the defendant. Plaintiff filed a motion for new trial, which the court sustained, and the defendant appealed.

The only ground on which the motion for a new trial was sustained, as stated by the court, was that counsel for the defendant in his argument to the jury had misstated the evidence of one of the witnesses for the defendant. The ruling on that point presents the first question for our consideration. The defendant called as a witness a physician who had attended the plaintiff and had treated her for her injuries. As some question was likely to arise as to the competency of this witness' testimony, the court directed that the jury be sent out of the room. After the jury had retired the counsel for defendant was directed to ask the witness such questions as he intended to ask when the jury should be recalled, this with a view to enable the court to judge of the competency of the evidence, a course of procedure which we will take this occasion to say was very wise and judicious. In the absence of the jury, after the witness in answer to questions by counsel for defendant had stated that he was a practicing physician, and that he had been called to attend the plaintiff, and had continued to attend her for about two months, the following occurred: "By the Court: Q You waited on her. Did she at any time tell you of any hurt she had received or injuries that she had? A. She did. Q. You may state what she said in reference to the manner in which she received these injuries? A. She said she was on the Metropolitan car on Main street coming north, and when she got to Ninth and Main streets, where she was going to get off, she had heard the conductor talking to a man in the car that wanted to go to the Union Depot, and the conductor told him he would have to hurry to catch the Ninth street car, and the man as she started to get off — the man brushed against her, and she fell from the car." While the jury was still out counsel for defendant stated to the court in the way of an offer what he purposed to show by this witness, in which statement he made no reference to what the plaintiff said to the witness about the accident, but it related only to the physical condition in which the witness found her and during his treatment of her, at the conclusion of which offer the counsel for the plaintiff said they made no objection to it. The jury then came in, and the trial was resumed, with the physician as a witness for the defendant on the stand. His testimony was on the line of the offer above stated. He was not asked in regard to anything the plaintiff said to him about the accident or how it occurred. In his argument before the jury the counsel for the defendant said: "Why did not the plaintiff put Dr. ____ (naming the physician) upon the stand? I will tell you why. They did not dare do so. They knew...