This is an action for damages for personal 'injuries alleged to have been sustained by 'the plaintiff while alighting from one of the defendant’s trains of cable cars, charged to have been caused by the starting of the train before the plaintiff had time to safely leave it. There was a verdict for the plaintiff for one cent damages, and upon motion of the plaintiff the- trial court granted her a new trial, “for the reason that the jury, having found that the plaintiff was entitled to recover, disregarded the court’s instructions as to the measure of damages and have shrunk from deciding the issues submitted to them.” Erom this order the defendant appealed.
The negligence charged in the petition is that plaintiff was a passenger on defendant’s train, and when the train reached 7th and Olive streets, going east, she signaled the conductor to stop the train, which the conductor did, but before she had time to get off and when she wias in- the act of getting off but while she was still on the platform of the car, the train was suddenly started, in consequence of which she
The plaintiff testified that on the- day of the accident, December 13, 1895, about nine o’clock a. m., she boarded the train at SYth and Olive street, and when the conductor collected her fare she told him she wanted to get off at Seventh street; that when the train reached Eighth street she motioned to the conductor to stop at Seventh street, and he nodded to show that he understood her; that the train stopped on the east side of Seventh street and several persons rose to get off and she did likewise. On cross-examination she testified that she was sitting towards the front end of the car and when she was leaving the car she was some distance- behind the other persons who were getting off; that the other persons got off the car, and when the last one 1-eft the oar, she, the plaintiff, was “just half way the length of the car” from that person; that just as she put her left foot down off the- oar, and while her right foot was still on the steps, the car “gave a jerk and threw me to the pavement; my left side wa-s bruised and my hip considerably.” On re-examination she testified:
• “Q. You were asked, on cross-examination, about the intervening space between yourself and the passengers next ahead of you in leaving the car at Seventh street, and you said that probably half the length of the oar intervened. I want to get you to say whether, at the time you were leaving the car and were in the middle of the car, those passengers were in the door or on the platform, or off the step; give some idea about the relative position of yourself in the oar with the last passenger leaving the car just ahead of you, who was stepping off the -step into the street?”
“Mr. Lehmann: I think the witness answered that;*220 she said she was in the middle of the oar when the last passenger ahead of 'her had left the car.”
“The Court: I understood her statement to be that at the time the last passenger who was ahead of her stepped off the car, she was about the middle of the car.”
“Mr. Stark: That is what I want -to fully understand. I didn’t understand that was what you meant, or whether the last passenger was in the doorway of the car, leaving the body of the car.
“Q. I would like to have you say what you intended to be understood on that subject? A. That was>what I understood — that was what I said.
“Q. Repeat it please. A. That I was in the middle of the car when the last passenger was getting off.
“Q. When he was getting off the step, or getting out of the doorway of the car?”
“Mr. Lehmann: I submit it is fully answered.”
(Last question repeated). “A. Whether they were in the doorway or on the step ?”
“Mr. Stark: Tes; at the time you were in the center of the car yourself in the act of leaving. A. Tes; I was in the act of leaving just as they were leaving the door, going out of the door on the step, 'as they were getting off.”
“Q. When you were in the middle of the car in the act of leaving the car yourself, state where the passenger next ahead of you was ? A. In the act of leaving the car; going out of the door.”
Abraham Siegel, a witness for plaintiff, testified that he was standing on the sidewalk on 7th and Olive streets; that the car had stopped before the plaintiff stepped on the step to get off; that several passengers had gotten off of 'the car and that just as the plaintiff stepped off of the lower platform, had one foot off the lower platform, the bell rang, the car started off, and plaintiff fell lengthwise on the pavement.
Charles J. Conway, another witness for plaintiff testi
Tbis was in substance the plaintiff’s case, as to bow the accident occurred.
Isaac B. Rosenthal, testified for defendant, tbat be was a passenger on the car; tbat the train stopped on the east side of Seventh street and several passengers got off, and when the conductor rang the bell, tbat tbe plaintiff then rose from ber seat and started to the rear of the car; tbat tbe car was in motion while the plaintiff was still on tbe inside of it, and was moving slowly, as cars usually do when they start up; that tbe car bad gone fifteen to twenty feet, when tbe plaintiff stepped off it while it was in motion, and tbat sbe fell or was thrown down in tbat way. .
John J. Austin, tbe conductor, testified thait after several passengers bad gotten off of tbe train, be rang tbe bell and tbe train started; tbat tbe plaintiff at tbat time was sitting on a seat on tbe south side of tbe ear and near its center; tbat after tbe car bad started and bad gone four or five feet, tbe plaintiff rose from ber seat 'and started hurriedly to tbe rear end of tbe car; tbat be shouted to ber, “Stop, wait till ■the car stops,” but sbe paid no attention whatever and “walked straight out on tbe street off tbe car.”
Erank S. Riely, testified for tbe defendant, that be was a passenger on tbe car; tbat tbe car stopped at Seventh street and several passengers got off; tbat after tbe car bad started, tbe plaintiff who was sitting just across tbe car from him, got up, “went to tbe back platform, and stepped off while tbe car was in motion.”
Eliza J. McKenna, testified for the defendant, that the plaintiff was sitting between the center and the front end of the ear; that: “After the train had left Seventh street, she got up and left the car, walked out of the car straight out; she didn’t go with the car nor she didn’t go back, but just straight out — of course fell.”
This was all the testimony introduced in the case. The case was submitted to the jury upon instructions as to which there is no question raised here, but which authorized a verdict for the plaintiff if she attempted to get off the train and before she had time to do so the train was suddenly started and she was injured, and which properly stated the measure of her damages, and which authorized á verdict for the defendant if the plaintiff left the car while it was in motion.
I.
But one construction can be put upon the verdict in this case, and that is that the jury believed the testimony of plaintiff’s witness, Conway, and of the defendant’s witnesses, Rosenthal, Austin, Riely, Catherine McKenna and Eliza Mc-Kenna, that plaintiff attempted to leave the car while it was in motion by walking straight off of the car, and was thereby injured. This is the overwhelming testimony in the case. It is controverted by plaintiff’s testimony and that of her witness 'Siegel, that the car had not started when she attempted to leave it, but that just as she had one foot off of the par, and while the other foot was on the bottom step of the car, the car started and she was thrown down on the pavement. But while she so testifies she also says that when the last passenger that was leaving the car ahead of her, stepped off of the car she was inside of the car and about the center of it, as
It is plain that the trial court’s criticism of the conduct of the jury is warranted by the verdict. But it does not necessarily follow that the plaintiff was prejudiced by the verdict. The defendant might justly have complained of the verdict, for it threw the costs of the suit ou the defeudaut. The plaintiff however is not entitled as a matter of law reviewable by this court, to have the verdict set aside unless her case is such that if the verdict has been for the defendant she would have been entitled to have the verdict set aside. In other words, where a jury has returned a verdict for nominal damages in a case wherethe plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate
Under the rule established by these cases, if the trial court had refused to grant this plaintiff a new trial, this court would have refused to interfere. The converse of the conditions in the cases cited is, however, present in this case. The trial court granted the plaintiff a new trial, and the proposition here presented is the power and duty of this court 'as to that ruling of the trial count.
Under section 2246, R. S. 1889, as amended by the Act of 1891 (Laws 1891, p. 70), and by the Act of 1895 (Laws 1895, p. 91), the defendant was entitled to appeal from the-order granting the plaintiff a new trial, and on such an appeal the appellant is only bound to show that the trial court erred in granting the new trial for the reason given by that court in so doing. [Ittner v. Hughes, 133 Mo. l. c. 688.] When such an appeal reaches the appellate court, the duty of that court has been pointed out in Candee v. Railway Co., 130 Mo. l. c. 154, by Gantt, P. L, as the following: “The granting of an appeal from an order setting aside a verdict is an innovation in appellate practice and we must endeavor to effectuate the intention of the legislature and in our opinion this statute will fall short of its purpose if we are to indulge in the presumptions which obtained prior to its enactment, and which do not at all consist with its express terms.. If the trial court assumes to set aside a verdict for any reason not contained in the motion, it is still its duty to specify that reason upon the record, but, whatever the grounds for its order, it was clearly the intention of the statute to give the right of appeal from its decision .thereon and if in the opinion of the appellate court its reasons are insufficient the verdict must stand and the costs of another trial be avoided, in the absence of affirmative showing by the party in whose favor
In Merriam v. Railroad,
The meaning of the section and the amendments referred to has also been considered in the following cases: Railroad v. Wear, 135 Mo. l. c. 259; State ex rel. v. Hirzel, 137 Mo. l. c. 443; Glover v. Bond Inv. Co., 138 Mo. l. c. 415; Thompson v. Railway Co.,
In Thompson v. Railway Co.,
State ex rel. v. Gates,
A comparison of these cases will show quite a difference in the principles they announce. For instance: Ittner v. Hughes,
The conflict seems to have arisen from difference in the proper construction to be placed upon the reason, purpose and spirit of the acts of 1891 and 1895. On the one hand the majority opinion in Thompson v. Railway Co.,
In other words the first theory applies the appellate practice, while the second theory gives this court all the powers of a circuit court including its discretionary powers in passing on a motion for a new trial, and authorizes and requires this court to do what the circuit court ought to have done.
Under the first theory the labors of this court would be very much reduced and its duty very simple, while under the second theory a greater burden is cast upon this court than rests upon the trial court, for this court is necessarily compelled to study the whole case and pass upon facts, without seeing the witnesses, all of which was familiar to the trial court.
The original purpose of the acts of 1891 and 1895 was to remedy inconveniences arising in partition cases, injunction cases, in arrest of judgment, and the granting of new trials in cases where no verdict in favor of the party at whose instance the new trial was granted could ever be allowed to stand. Prior to the passage of these acts no appeals were permitted until final judgment, and if a new trial was granted by the trial court the' only way open to the losing party in the motion to have the ruling of that court reviewed was to save proper exceptions, abandon his case, permit final judgment to go against him and then appeal. In other words to risk his whole ease upon the soundness of his judgment with respect to the ruling of the court on the motion for a new trial. It was, inter ■alia, to remedy this hardship that these acts were passed. There is no intention expressed in these acts to require this court to treat such appeals
Under the old practice this court applied the appellate practice and refused to weigh conflicting evidence or to reverse the ruling below on discretionary matters, and interfered only for errors of law, or where conceding everything that was stated or pointed out by the party in whose favor a new trial had been granted that party was hot entitled to a verdict. Pritchard v. Hewitt, 91 Mo. l. c. 550; Overholt v. Vieths, 93 Mo. l. c. 426; Leahy v. Davis, 121 Mo. l. c. 236; Dowd v. Air Brake Co.,
Taking this view of the acts of 1891 and 1895 and applying it to the case at bar the result is, that it can not be said that this is a case where no verdict for the plaintiff could ever be permitted to stand. The fact is that the great preponderance of the evidence is in favor of the defendant and shows very conclusively to any impartial mind that the plaintiff’s injuries were sustained in consequence of her own negligence and that the defendant was not negligent. But while this is true it is likewise true that if all the plaintiff claims and testifies to be conceded, it can not be said she would not be entitled to recover. For she' — -in a very lame way — and her witness Siegel, in a positive way, testify that while she was alighting from the car — while she had one foot off the car and the other on the bottom step — the car was started and she was thrown to the pavement and injured. If this be true, she is entitled to recover. Whether it is true or not is a question for the jury, for it is some substantial testimony which will take the case to the jury (James v. Ins. Co., 148 Mo. l. c. 15 and 16) as distinguished from a mere shadow or scintilla of testimony, which would not entitle her to go to the jury. [Powell v. Railroad, 76 Mo. l. c. 84, citing and following Commissioners v. Clark,
If the jury had found for the defendant in this case, and the trial court had refused to grant the plaintiff a new trial, there is no error of law apparent on this record which would have warranted a reversal of that judgment by this court. Or, if in such an event the trial court had granted a new trial because the verdict was against the evidence, this court would not have interfered, although of opinion that the trial court was mistaken in its judgment as to the preponderance of the evidence, for it is the prerogative and duty of a trial court to grant one new trial when in its opinion the
But none of these conditions are present in this case. The verdict is for the plaintiff, and yet she is given no damages commensurate with the injuries she received. Regarded as a verdict in effect for the defendant, the trial court had a right to grant the plaintiff a new trial because that court believed the verdict was against the weight of the evidence (which was one of the grounds for new trial assigned), and this court, although disagreeing with that opinion, has no right to interfere. Neither can this be regarded as a case' •where, conceding all the plaintiff says and shows, a verdict for the plaintiff could not stand. Eor as herein shown, if the plaintiff’s testimony and that of her witness Siegel be true, that constitutes some testimony upon which the verdict- could rest, and as this court will not weigh conflicting testimony, we could not set aside such a verdict, if the trial court refused to do so.
The reason assigned by the trial court can only be construed to mean that the trial judge was1 of the opinion that upon the evidence adduced the plaintiff was entitled to a verdict, and being so entitled the jury found for the right party, but erred in not pursuing the finding to its logical conclusion of giving the plaintiff compensatory damages, and therefore the verdict on the question of the damages was con
In any view of tbe case the verdict is illogical. But if the trial court had treated it as, in effect, a verdict for the defendant, this court would have been satisfied, for the plaintiff would have had no just ground to complain, as it relieved her of the costs in the case, which a proper verdict would have assessed against her. The judgment of the circuit court is affirmed on the sole ground that in granting the plaintiff a new trial that court exercised a discretion which is vested in it, and which this court will not review except when arbitrarily exercised, which can not be fairly said to be true in this case.