Tevis v. United Rys. Co. of St. Louis

• Decision Date: 02 May 1916
• Docket Number: No. 14344.,14344.
• Citation: 185 S.W. 738
• Parties: TEVIS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

185 S.W. 738

TEVIS v. UNITED RYS. CO. OF ST. LOUIS.

No. 14344.

St. Louis Court of Appeals. Missouri.

May 2, 1916.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Addie Tevis against the United Railways Company of St. Louis. Verdict for defendant, and from an order for a new trial, it appeals. Reversed, and cause remanded, with directions to reinstate the verdict and enter up judgment in favor of the defendant.

Boyle & Priest and Geo. T. Priest, all of St. Louis, for appellant. A. R. & Howard Taylor, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff brought her action against the defendant to recover damages for injuries which she alleges she sustained while being carried as a passenger in a car of the defendant.

The petition in the case charges that plaintiff, while such passenger, was proceeding to alight from the car, and that as she was in the inner door of the car and about to step out of that door to the floor of the platform of the car, and thence out of the exit door, she stepped upon a large banana peel, which defendant's servants in charge of the car negligently allowed and permitted to be and remain in the doorway.

At the trial before the court and a jury evidence was introduced by plaintiff to the effect that she had signalled the car to stop and when the car came to her destination, she arose from her seat and walked to the rear of the car, standing in the main body of the car just within the door, with both feet within an inch or so of the step from which she had to step to reach the rear platform of the car. The car had come to a stop and plaintiff took a step from that position onto the rear platform of the car, with her right foot, and slipped and fell, falling out into the street through the door that leads from the rear platform to the step, and landing in the street, suffered serious injuries. When plaintiff arose she saw the banana peel, not on the rear platform of the car but within the main body of the car up against the wall. The conductor of the car was in his cage on the rear platform. Plaintiff was the sole witness testifying to the manner of the accident.

The plaintiff did not testify, in so many words, that she knew that she had stepped on this banana peel. She testified that after she had fallen she turned and saw a banana peel; that a man showed it to her. It was lying on the left hand side of the car step, "lying over there; it was a little sweep across the step," she first said, then correcting herself, she said it was across the floor of the car, on her left side as she went out of the car; that she, on looking back, saw a streak of black on the platform.

At the conclusion of plaintiff's evidence in the case, defendant demurred. This was overruled but defendant declining to introduce any evidence, the cause was submitted to the jury without instructions being asked by either party or given by the court, except that the court gave the usual instruction as to the number of jurors necessary to concur in a verdict. The jury returned a verdict in favor of defendant but a motion for new trial being filed, it was sustained on the assigned ground that the verdict was against the weight of the evidence. From this defendant has appealed to our court.

It is earnestly contended by learned counsel for appellant that the trial court erred in setting aside the verdict on the ground assigned. As there is no pretense that it should have been set aside on any other ground, the appeal is before us entirely upon that assignment.

Appellate courts are very reluctant to disturb the action of the trial court in setting aside a verdict as being against the weight of the evidence, almost invariably yielding to the conclusion arrived at by the trial court on the weight of the evidence. But this does not mean that the action of the trial court, when based upon that ground, concludes an appellate court. If that was so, then an appeal, which the statute gives in all such cases, would be a vain proceeding. Where the discretion of the trial court is exercised, it is always within the power, as it is the duty, of the appellate court, to determine whether the trial court has exercised its discretion in a reasonable manner and whether its action can be sustained therein by the evidence in the case. To that end the appellate court must and will examine the evidence; if on such examination we are satisfied that that discretion has been wrongly exercised, it is our duty so to say and act accordingly.

In the case at bar it is contended by learned counsel for appellant that the court abused this discretion in sustaining the motion on the assigned ground, and that on no possible view of the testimony in the case could the verdict be otherwise than as returned by the jury, that is to say, in favor of defendant.

Counsel for appellant assail the action of the trial court on two grounds. First, it is argued that the evidence in the case shows that it was a physical impossibility for the accident to have happened to plaintiff in the manner in which she claims that it did. It is argued that it would be a physical impossibility for her to have stepped on the banana peel in the position she described it, for the step that she took which caused her to slip, was from the main body of the car and down onto the platform. It would have been a physical impossibility for her slipping, argue counsel, to have caused the banana peel to have lodged in the position in which she saw it when she arose from the street. With these physical facts in the case it is argued the jury found the only verdict that it was possible to return, namely, a verdict for the defendant. It is further argued that under these circumstances, no verdict could stand for plaintiff. Hence it is argued that the court...