Honeycutt v. St. Louis, Iron Mountain & Southern Railway Co.

40 Mo. App. 674 | Mo. Ct. App. | 1890

Thompson, J.,

delivered the opinion of the court.

This is an action for damages by Mrs. Honeycutt (with whom her husband is joined for conformity), for an injury received while a passenger on a train of the defendant, in consequence of the car in which she was riding becoming derailed at a switch. The plaintiff had a verdict and judgment, and-the defendant appeals.

I.' The first error assigned is that the circuit court of Wayne county had no jurisdiction to try the case at the time and place at which the court was held, because the law (Acts of 1889, sec. 2, p. 67), by which Wayne county was transferred from the twenty-third to the twenty-sixth judicial circuit, did not take effect until the first day of November, 1889. This point is not well taken. The statute just cited not only transferred Wayne county from the twenty-third to the twenty-sixth judicial circuit, but it also changed the time of holding the circuit court of Wayne county; and section 16 of the act of 1889, “declaratory of the Revised Statutes” (Laws of 1889, p. 149), provides that “acts changing the time of holding courts shall take effect in ninety days after the adjournment of this session of the legislature.” This clause refers to the entire acts and not to parts thereof. The act first cited changed the time of holding the circuit court of Wayne county, from the third Mondays of May and November at Greenville, and the fourth Mondays of May and November at Piedmont, as fixed by the act of April 5, 1887 (Laws of 1887, p. 153), to the first Mondays of February and August at Greenville, and to the third Monday in March and fourth Monday in September at Piedmont. Laws of 1889, p. 68. This act, therefore, since it contained a provision changing the time of holding courts, went into effect in ninety days after the adjournment of the legislature in regard to all provisions contained in it.

II. The next assignment of error is that “the court erred in admitting illegal, improper and irrelevant evidence ■ offered by the plaintiffs against the defendant’s objection.” The record shows that a number of, exceptions were saved by the defendant to the admission of evidence offered by the plaintiff. We do not know which one of these exceptions the defendant intends to bring to our attention by this general assignment of error. It is the duty of counsel in assigning errors to point out specifically the error complained of. It is no part of the duty of an appellate court to make-a search of the record for possible errrors, much less, under a general assignment of error, like this one, to examine all the numerous rulings at the trial, to which it might by possibility be supposed to relate. McGarry v. Railroad, 36 Mo. App. 340, 345; Schultz v. Moon, 33 Mo. App. 329, 338.

III. The next assignment of error is ‘ ‘ that the court erred in not sustaining the defendant’s motion for a new trial, because the verdict was manifestly against the weight and preponderance of the evidence ; against instructions of the court; excessive, and manifestly the result of passion and sympathy; and was not a fair application of the law to the facts.” We take occasion also to say that this is not an apt way to assign errors. Several supposed errors are here thrown together into one general assignment. To the whole paragraph seven cases are cited; but to which supposed error each case is cited, we cannot tell without examining all of the cases. An assignment of errors is in the nature of a pleading. We have always treated assignments of error, when made in the printed statement and brief, as sufficient. But when errors are so assigned, in order to aid the court in its examination of them, each supposed error should be separately assigned, and cases -should not be cited en masse to a collection of assignments of error, but the cases to which counsel ask the attention of the court, in connection with each assignment, should be cited to. that assignment. We shall, nevertheless, treat these assignments of error as a general assignment, with certain specifications, that the verdict is the result of bias and prejudice.

Some of the specifications are snch as cannot be assigned in appellate courts in this state, under well-settled principles. Such is the assignment that “the verdict was manifestly against the weight and preponderance of the evidence. Appellate courts have nothing to do, in actions at law, with the mere weight and preponderance of the evidence. Another is that it was not reached “ by 9, fair application of the law to the facts.” This assignment falls within the same category as the last. Appellate courts* cannot take upon themselves the office of juries for the purpose of determining what is a fair application of the law to the facts. It is not pointed out in what respect the verdict is against the instructions of the court, and we fail to see that it is.

The damages awarded by the jury were twenty-two hundred and fifty dollars. The car in which the plain-, tiff was riding was derailed and turned over. The leaders of her right hand were cut, and her hand was stiffened and crippled. She also suffered severe pain. and anguish. In the opinion of an expert witness who testified for her, her fingers were permanently disabled. The verdict seems large ; but it is a case where the jury necessarily have to give a round sum, and there is no rule of law by which we can determine, what that sum should be. If the verdict is so large as plainly to show passion, prejudice or a disregard of the evidence on the part of the jury, it is our duty to set it aside, or to require a remittitur ; but we cannot say this in the present case.

IY. The next assignment of error is that “the court erred in refusing to rebuke counsel for its ill-advised and ill-tempered language, used during the progress of the production of evidence, calculated to inflame the passion and prejudice of the jury.” This assignment of error fails, because the exception taken to the refusal of the court to rebuke counsel was not renewed in the motion for new trial. Bevin v. Powell, 11 Mo. App. 216. It is just to the court, and to the counsel referred to, to add that, while the remark which was made by counsel, and which the court refused to rebuke, was an idle and hasty remark, not becoming the dignity and solemnity of a judicial trial, it was not calculated to inflame the passion or prejudice of the jury against the defendant.

Y. It is assigned for error that the court erred in, the instructions given to the jury on its own motion, but no argument or suggestion is offered in support of this assignment. These instructions seem to us to be strictly accurate and proper; and we may add that the court gave all the instructions requested by the defendant, and that the case seems to have been very fully and fairly submitted to the jury.

The judgment will be affirmed. It is so ordered.

All the judges concur.