Weinberg v. Metropolitan Street Railway Company
| Decision Date | 25 May 1897 |
| Citation | 40 S.W. 882,139 Mo. 286 |
| Parties | Weinberg, Appellant, v. Metropolitan Street Railway Company |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court. -- Hon. W. W. Wood, Judge.
Affirmed.
O. L Houts and Hollis & Lithgow for appellant.
(1) The court erred in overruling appellant's motion for new trial on the ground that the amount of damages assessed by the jury shows prejudice, bias or mistake. This is not a case in which nominal damages can be given. Boggess v Railroad, 118 Mo. 328; Fairgrieve v. Moberly, 29 Mo.App. 141; Welch v. McAllister, 13 Mo.App. 89; Railroad v. Ashcraft, 48 Ala. 15; 2 Thompson, Neg sec. 58, p. 1266; Field on Damages, sec. 886; Reid v. Ins. Co., 58 Mo. 421; State v. Alexander, 66 Mo. 163; Edens v. Railroad, 72 Mo. 212. (2) Damages must be left largely to the discretion of the jury. It, however, is not at liberty to give any sum it pleases. Waldhier v. Railroad, 87 Mo. 38. (3) The jury in estimating plaintiff's damages should consider every fact in the case, which tended to increase the amount of her pain, or the extent of her injuries. Blair v. Railroad, 89 Mo. 334; Price v. Evans, 49 Mo. 396; Rose v. St. Charles, 49 Mo. 509; Pritchard v. Hewitt, 91 Mo. 547.
Pratt, Dana & Black for respondent.
(1) The general rule is that in actions sounding in tort a verdict by a jury for nominal damages should not be interfered with. Booth on Street Railways, sec. 375; Hutchinson on Carriers [2 Ed.], sec. 744; Railroad v. Kemp, 61 Md. 619; Railroad v. Chappell, 22 Fla. 616; Gregory v. Chambers, 78 Mo. 298; Brown v. Railroad, 51 Mo.App. 192; Lancaster v. Providence & S. S. S. Co., 26 F. 233. (2) It is the peculiar province of the jury to pass upon the facts of a case, and where there is a conflict of testimony as to any fact, the verdict of the jury, in so far as it relates to such fact, should prevail. Lancaster v. Providence & S. S. S. Co., 26 F. 233; Steamboat City of Memphis v. Matthews, 28 Mo. 248; Bradford v. Rudolph, 45 Mo. 426. (3) There was no passion or prejudice on the part of the jury. Fairgrieve v. Moberly, 29 Mo.App. 141; Welch v. McAllister, 13 Mo.App. 89.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff by being thrown upon the pavement while lighting from defendant's cars in Kansas City, Missouri, by reason of the carelessness and negligence of the servants of defendants in charge of said cars. The suit was begun in the circuit court of Jackson county, but the venue was subsequently changed to Johnson county, where a trial was had resulting in a verdict and judgment in favor of plaintiff in the sum of one dollar, from which she appeals.
On the night of April 30, 1893, at about the hour of 10 o'clock, plaintiff was a passenger on one of defendant's cars en route to her place of residence on Eighteenth street in Kansas City, Missouri, and when she arrived at the point of destination on the cars, to wit, Forest avenue and Nineteenth street, the conductor stopped the cars to let her off, but before she reached the pavement, and while one foot was yet on the step of the car, the cars started up suddenly, throwing her upon the pavement, bruising her right shoulder and the muscles of her back near the shoulder. She was assisted to her feet by the conductor and went on alone to her home which was about one and one half blocks away.
The evidence showed that she was about seven months advanced in pregnancy at the time of the accident, and that on that night and for several weeks thereafter she suffered much pain. The evidence on her part showed that about three weeks after the accident the child, of which she was then pregnant, was prematurely born, and that she still suffers from pains in her head, back and groin. Medical experts testified, on the part of defendant, that if the birth of the child had been produced by the fall of plaintiff, that it would have been born within seventy-two hours next thereafter, and that in their opinion the birth was not produced by the fall; and that, upon examination by them of plaintiff, about three weeks after the accident, they found no indication of any injury, except a discoloration of the right shoulder, and of the muscles of the back near thereto.
The child, while small and delicate when born, was alive at the time of the trial.
The only ground insisted upon by plaintiff for a reversal of the judgment is the smallness of the verdict, which, it is claimed, shows prejudice, bias, or mistake on the part of the jury. If this contention were borne out by the facts disclosed by the record, this court would not hesitate to reverse the judgment, for no judgment should be permitted to stand which is the result of passion, prejudice, or partiality. 3 Sedgwick on Damages [8 Ed.], sec. 1326; Welch v. McAllister, 13 Mo.App. 89; Fairgrieve v. Moberly, 29 Mo.App. 141; Pritchard v. Hewitt, 91 Mo. 547, 4 S.W. 437; Whitsett v. Ransom, 79 Mo. 258; Gregory v. Chambers, 78 Mo. 294; 1 Graham and Waterman on New Trials [2 Ed.], star p. 452; Boggess v. Railroad, 118 Mo. 328, 23 S.W. 159; Leahy v. Davis, 121 Mo. 227, 25 S.W. 941; Dowd v. Airbrake Co., 132 Mo. 579, 34 S.W. 493.
The only argument offered in support of this contention is the smallness of the verdict, which, it is insisted, is so inadequate as to shock the sense of justice and to satisfy the judicial mind that the verdict was the result of passion prejudice, or partiality. The evidence showed that plaintiff was thrown or fell from the car by reason of the negligence of the defendant's servants in starting the car, while she was in the act of alighting therefrom, thus precipitating her to the...
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