Thompson v. Metropolitan Street Railway Company

• Citation: 41 S.W. 454,140 Mo. 125
• Parties: Thompson, Appellant, v. Metropolitan Street Railway Company
• Decision Date: 15 June 1897
• Court: Missouri Supreme Court

41 S.W. 454

140 Mo. 125

Thompson, Appellant, v. Metropolitan Street Railway Company

Supreme Court of Missouri

June 15, 1897

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

Hollis & Lithgow for appellant.

(1) The court erred in sustaining the motion for new trial. Baughman v. N.W. W. Co., 58 Mo.App. 580; Lovell v. Davis, 52 Mo.App. 342; Stanard Milling Co. v Transit Co., 122 Mo. 258; Kelly v. Railroad, 70 Mo. 608; St. Vrain v. Columbia, etc., Co., 56 Mo 590; Richey v. Burnes, 83 Mo. 364. (2) The verdict was for the right party. Baehneke v. Railroad, 22 N.Y.S. 712; Hegeman v. Railroad, 16 Bush. 353; Hutchinson on Carriers, secs. 526, 517; Duggan v Railroad, 46 Mo.App. 266; Matz v. Railroad, 53 N.W. 1071. (3) It has generally been the rule in this State to defer to the action of the trial court in granting new trials, but this rule does not apply in granting new trials on the weight of evidence where the testimony of plaintiff is largely in depositions. Baker v. Rockabrand, 118 Ill. 365; McCormick v. Miller, 102 Ill. 208; Knisele v. Sampson, 100 Ill. 573; Sherman v. Mitchell, 46 Cal. 576. (4) Whenever, from all the facts and circumstances in evidence, a jury may, without doing violence to the dictates of reason and common sense, infer a given fact on account of its known relation to the facts proven, the court should not interpose its own different conclusions. Peck v. Railroad, 31 Mo.App. 123; Spohn v. Railroad, 101 Mo. 417; Matz v. Railroad, 53 N.W. 1071. (5) Where the facts are either disputed or different inferences may fairly be drawn from the undisputed facts, the question of negligence should be submitted to the jury. Huhn v. Railroad, 92 Mo. 440; Dowell v. Guthrie, 116 Mo. 646; Barry v. Railroad, 98 Mo. 62; Tabler v. Railroad, 93 Mo. 79; Boland v. Kansas City, 32 Mo.App. 8; Corrister v. Railroad, 25 Mo.App. 619; Kinney v. Springfield, 35 Mo.App. 97; Ball v. Independence, 41 Mo.App. 469; Norton v. Ittner, 56 Mo. 351; Groll v. Tower, 85 Mo. 249. (6) The fourth instruction given for defendant is certainly erroneous. It selects one set of facts and tells the jury that they must find from the greatest weight of the evidence that plaintiff's foot caught in the wheel box and the side of the car, and while so fastened she fell to the ground with her foot so fastened, and unless they do so find, the verdict must be for defendant. Twohey v. Fruin, 96 Mo. 109; Ewing v. Ewing, 44 Mo. 23; Rothchild v. Ins. Co., 62 Mo. 356; Jones v. Jones, 57 Mo. 142; Fine v. St. Louis Public Schools, 30 Mo. 166; State v. Smith, 53 Mo. 267; Chouquette v. Barada, 28 Mo. 491; State v. Witten, 100 Mo. 530; Barr v. Kansas City, 105 Mo. 558; State v. Patrick, 107 Mo. 188; Chappell v. Allen, 38 Mo. 213; Anderson v. Kincheloe, 30 Mo. 525; Forrester v. Moore, 77 Mo. 651. These opinions all hold that all the evidence and surrounding circumstances must be taken into consideration.

Pratt, Dana & Black for respondent.

(1) If the motion for a new trial was properly sustained for any reason, whether that given by the trial court or any other, which can be deduced from the record, then the order sustaining it must be affirmed. Baughman v. Water Works, 58 Mo.App. 580; Hewitt v. Steele, 118 Mo. 463; Bank v. Wood, 124 Mo. 72; Stanard Co. v. Transit Co., 122 Mo. 258. (2) There were errors committed at the trial in the admission of evidence over defendant's objection. Berning v. Medart, 56 Mo.App. 449; Worheide v. Car Co., 32 Mo.App. 367; Smith v. Railroad, 69 Mo. 37. (3) The trial court erred in refusing defendant's third instruction. Thompson v. Railroad, 36 S.W. 625; Bunyan v. Railroad, 127 Mo. 12. (4) The verdict was against the evidence and against the weight of the evidence, and was, therefore, properly set aside. Reid v. Ins. Co., 58 Mo. 430; Bank v. Armstrong, 92 Mo. 265. All the foregoing points were set out in the motion for a new trial and should therefore be considered in determining whether it was properly sustained. (5) The demurrer to plaintiff's testimony should have been sustained, and a verdict directed for defendant; therefore the action of the trial judge in sustaining the motion for new trial must be affirmed. Fox v. Mayor, etc., 24 N.Y.S. 43; Crocheron v. North Shore Co., 56 N.Y. 656; Loftus v. Ferry Co., 84 N.Y. 455; Lafflin v. Railroad, 106 N.Y. 136; Farley v. Traction Co., 18 A. 1090; Keller v. Railroad, 24 A. 159; Werbowlsky v. Railroad, 48 N.W. 1097; Selddon v. Bickley, 25 A. 1104; Race v. Ferry Co., 34 N.E. 280; Thompson v. Railroad, 36 S.W. 625. (6) It appearing that the trial court should have directed a verdict for defendant and rendered judgment in its favor, this court, the whole record being properly before it, should render judgment for defendant. R. S. 1889, secs. 2113, 2114, and 2304; Hunt v. Railroad et al., 89 Mo. 607; Carroll v. Railroad, 107 Mo. 653; Kinealy v. Macklin, 67 Mo. 98; Sparks v. Transfer Co., 104 Mo. 536; McFarland v. Railroad, 125 Mo. 253; Brown v. Dressler, 125 Mo. 589; Long v. Moon, 107 Mo. 341; Thompson v. Cohen, 127 Mo. 241; Baker v. Railroad, 122 Mo. 547.

Robinson, J. Barclay, C. J. Gantt, Macfarlane, Burgess, and Brace, JJ., concur in this opinion.

OPINION

In Banc.

Robinson J.

-- This case is here on an appeal from an order setting aside the verdict of a jury. The action was begun to recover damages for injuries alleged to have resulted to plaintiff from defendant's negligence. Plaintiff was a passenger on one of defendant's open summer cars in Kansas City, and when attempting to alight therefrom fell and was injured. The case was tried by a jury resulting in a verdict for plaintiff for $ 5,000. Defendant filed its motion to set aside the verdict and grant it a new trial, which was sustained, and the reason assigned by the court for so doing was "that the verdict should have been for the defendant under the evidence submitted instead of plaintiff."

Plaintiff prosecutes this appeal from that order, and asks this court to remand the cause with directions to the trial court to enter judgment for plaintiff on the verdict. The defendant on the other hand, however, contends that the trial court properly set aside the verdict not only for the reason stated in its order, but also on account of other errors assigned in its motion for a new trial, and further urges that as the whole record is now before this court, and that no liability on its part is shown, this court should enter such judgment here, or remand the cause with directions that the trial court enter such judgment now, as might have been entered by that court notwithstanding the verdict, as provided by section 2304, Revised Statutes.

Plaintiff charges in her petition that defendant carelessly and negligently used cars dangerously constructed in this, that the wheels were permitted to extend up through the floor of its car to a height of five or six inches over which was placed a sheet iron fender or wheelhouse. That the outside of the fender or wheelhouse was three inches from the outside support of the car seats under which it extended, thereby forming a slot or space between the wheelhouse and the car seat into which a passenger without fault is liable to get a foot caught while attempting to alight from its cars and for her cause of action states that: "On or about the thirtieth day of August, 1891, she became a passenger of defendant, on one of its lines of road in said Jackson county, Missouri, by boarding one of its cars and paying the usual fare to be transported to a point on its line known as Twelfth and Mulberry streets in Kansas City; that when said car arrived at her point of destination the servants operating and managing the same stopped at plaintiff's request for her to alight therefrom; that she was sitting in the grip car of defendant, in a seat just back of the right front wheel and her foot came in contact with the sheet iron fender above described as covering said wheel; that in her attempt to alight from said car, as she stepped off, with her right foot from the right side of said car, her left foot stepped into the slot or trap so carelessly and negligently made and left in its negligent construction; the catching of said left foot threw plaintiff with great force to the hard pavement, bruising and spraining her right arm, wrist and hand; the catching of the left foot in said place caused her left ankle, foot, knee and hip to be sprained; that the sprain and injury to the said knee and hip is permanent; that she, on account of same, has suffered great physical pain and mental anguish and is a cripple for life. That the same was directly caused by the wrongful act of defendant in so carelessly and negligently constructing said car as aforesaid, to her damage in the sum of ten thousand dollars for which she asks judgment with costs of suit."

Plaintiff is not very clear in her testimony as to just how or why her left foot in getting into and becoming fastened between the wheelhouse or fender and the side of the car seat in front of her, threw her to the pavement or caused her to fall. Nor is her statement as to how the fall occurred ample to warrant the inference that the fall was the result of the foot becoming fastened, but is only sufficient to explain the way the sprain to her ankle might have happened after the fall did occur.

Below is given all that plaintiff said on that branch of the case.

Being sworn, she testified:

"I am 47 years old, live in Kansas City, Missouri, for seventeen years; husband's name, William Thompson. He is a stone mason. I was on the Metropolitan street cars August 30th 1891. I got on at the stock yards to be carried to Twelfth and Mulberry streets, close to my home. I sat on the single seat on the right hand side of the grip car. The car stopped at...