172 Mo. App. 141 | Mo. Ct. App. | 1913
Lead Opinion
Plaintiff, as the widow of Frederick B. Iba, sues to recover $10,000 damages for the death of her husband alleged to have been caused by the joint carelessness and negligence- of the defendants.in this way:
That defendant Phelan was the conductor of his codefendant’s passenger train hereinafter mentioned; that plaintiff’s husband had purchased a ticket at the station of Easton, Missouri, on the line of defendant railway, entitling him to ride from said station to St. Joseph, Missouri; that when the passenger train arrived at Easton, and before plaintiff’s husband, had time to board said train in safety, Phelan the conductor carelessly and negligently signalled said train to move knowing that plaintiff’s husband was in the act of boarding said train, and knowing, or by. the exercise of ordinary care could have known, that said husband was in a place of danger; that such careless and negligent signal was given and the' train caused to start while there was a large freight truck standing within six inches of the edge of the said depot platform and very near to the side of the coach of the said train, and near the baggage coach of said train ahead, and in front of the passenger coach of the train, and of the place where passengers were received on said train, and, at the time the said conductor caused the
The defendant railway filed its petition and bond to have the cause removed to the Federal court, and the circuit judge sustained the petition and ordered the case removed. Thereupon plaintiff brought certiorari in the Supreme Court of Missouri, which court held that the court erred in ordering the removal and quashed said order. [State ex rel. v. Mosman, 231 Mo. 474, l. c. 493.]
Two witnesses testified in plaintiff’s behalf as to how the death occurred, and their testimony tended to sustain the allegations of the petition. One of these witnesses was a man by the name of Rise who swore that he was present and saw deceased board the train; that witness was at the station to look for a car in which to'ship a load of apples; that he got to the station just as the train stopped; that he, witness, stopped at the west end of the depot, and deceased walked over to take.the train to St." Joseph; that deceased “came out of the baggage room to take the train and got on the train, and the conductor says to Iba, he says, ‘You are not going to ride on this train,’ and somebody, I don’t just exactly know who it was, told him, he says, ‘Why not, the man has got a ticket,’ and the conductor grabbed Mr. Iba and says, ‘You are not going to ride on this train, ’ and at the same time when he grabbed him he saw the danger he was in, and tried to shove him back on the platform, but the truck struck his right shoulder and whirled him around, and the other handle or bar struck him and knocked him down, and when' I saw him fall why I just went up the street.” He further testified that when deceased boarded the train, to the best of his knowledge, it was standing; that deceased was standing with both feet on the platform of the car and his left hand holding to the guardrail and he was- just in the act of taking hold with his right when the conductor said, “You are not going to ride on this train;” that when the con
The evidence of defendants tended to contradict that of plaintiff. Some half dozen or more witnesses testified to the effect that the train was moving when deceased came out of the depot and attempted to board it. The conductor, Phelan, testified that “the train had started and had gone a distance of about fifteen feet when deceased attempted to board it;” that, “he did not have hold of the first handhold of the coach at all; he was making an effort of hopping on one foot— sometimes he looked like he was down between the platform, and sometimes on the platform making an effort with his foot to get on, and when I saw that I hollowed at him. I said, ‘For God’s sake, don’t get on that way, ’ and the next thought was to grab him, and I made an attempt to grab him. Well, -he was coming to me so fast, and I started so fast that we pretty near missed, but I just did grab him by the right arm and back, but I did not get no hold of him at all, and he went by, and before I could grab again he had done passed me.”
At the close of all the testimony the defendant railroad company called the trial court’s attention to the petition and bond for removal and asked that the cause be ordered removed to the Federal court. This was denied. The jury returned a verdict of $5000. Defendants appealed. Within four days from the return of -the verdict, defendants filed motions for new trial and in arrest, same being filed February 18th. The eleventh ground for a new trial specified in the motion was that “the verdict is against the weight of the evidence.” At the same term and while the motion for new trial was pending, but after the expiration of four days from the verdict, to-wit, on April 16, 1910, defendants, in support of said motion, introduced the affidavits of eight witnesses, whose statements are to the effect that Albert Eise, one of plain
“Mr. Phillip:' I would like for your Honor to let the record show the remarks your Honor made in overruling defendants’ motion for new trial.
The Court: You want to get this whole thing before the Court of Appeals, and let them say, and I would be glad for them to do it.
“Mr; Crow: Then your Honor can write out your Honor’s views on this question, and I will agree to have it made a part of the bill of exceptions.
“Mr. Phillip: I would like for your Honor to state it. That your Honor says, that you felt a new trial in this case ought to be granted, but you felt that under the legal rule you were not permitted to grant it; that is the substance of it.
“The Court: That approaches what I said. What I tried to say was this: That in the original trial of this Iba case, if the decision óf the c'ase had been left to me, I would have decided for the defendants, hut when the case was ended, I did not feel that the preponderance of the evidence was so greatly in favor of the defendants as to warrant me in sitting the verdict aside. Afterwards, these affidavits were filed against Rise, and that threw such a suspicion in my mind against his testimony, that I felt constrained then to set the verdict aside. Afterwards Rise was indicted and tried in the criminal court and acquitted.*149 Then I felt that I ought to respect the verdict of that jury and sustain the verdict of this jury, and I felt constrained to that, by my respect for the machinery of courts and trials. Then if I shut this out, if I shut the right of these two juries out and get back to my own conclusions, weighing Rise’s testimony as affected by the suspicions that had been thrown in my mind and everything that I had learned about the case, then I would still conclude that the verdict ought to be set aside, but I feel that I ought to defer and that I am outweighed and overruled by the verdict of this jury and the conclusion of the jury in the criminal court.
“Mr. Phillip: And in substance, that personally, the court feels that the verdict ought to be set aside, but you don’t think you ought to set it aside in view of the two verdicts returned, one in the criminal court, an one here?
“The Court: Yes, sir; that is it. Now if they can give us any light on that it may help out some other time.”
Three main contentions are made by appellants. First, that “the order removing the cause to the Federal court not having been set aside by the trial court, it had no jurisdiction to try the case.” There was no need for the trial court to set aside the order of removal, since the Supreme Court performed that task more effectually than any order of the trial court could have done. [State ex rel. v. Mossman, supra.] In that case the order of removal was quashed. A kindred point made is that as the defendants were not parties to the Mossman case, the decision of the Supreme Court is not res adjudicata as to them. Consequently it is urged that we should hold that the controversy herein is separable in that the defendant company is liable, if at all, under section 5425, Revised Statutes of Missouri, 1909, and the defendant Phelan is liable, if at all, under section 5426 of said statutes, and therefore, by reason of the diversity of citizen
The second complaint of appellants is as to plaintiff’s instruction No. 1. In effect it required the jury, before plaintiff could recover, to find that Iba safely boarded the train and that “after deceased safely boarded the train,” defendant Phelan carelessly and negligently, while the train of the defendant company was in motion, took hold of, pulled and pushed deceased and thereby caused his body to strike the truck and knock him under the train. The contention is that the petition does not allege that Iba had safely boarded the train bnt that on the contrary it alleges that he was in a place of danger at the time the conductor signalled the train' to start and that the conductor caused said train to start before Iba had time to board said train in safety. We do not think the petition alleges that the deceased was in a place of danger so far as merely boarding the train was concerned, or while he was on the steps of the car untouched by any one, but only that it became a dangerous place for plaintiff when the conductor took hold of him and attempted to pull him off. The petition does not allege that the starting of the train caused the injury. On the contrary it asserts, and plaintiff tried her case on the theory, that deceased had gotton safely on the lower step of the car while it was standing still, and was consequently in a position of safety and was in the act of going on up into the car when the conductor started the train and took hold of him. The objection that the instruction is opposed to defendant’s instruction 8 is untenable, not because the objection
The third and last contention made by appellants is the most serious and important one in the case. Over it two rehearings have been granted, a number of oral arguments have been made and many briefs pro and con submitted. These rehearings were gran-ed before the writer came upon this bench.
This last contention, briefly stated, is that the court had no right to overrule the motion for new trial when he was of the opinion that the verdict was against the weight of the evidence. Or, to state it in another way, the trial court, believing that the verdict was against the weight of the evidence, and that the testimony of Rise in support of it' was perjured, had no right to lay aside his views and the judgment of his mind on that matter, and overrule the motion for new trial out of deference to the verdict of the jury in the damage suit and the conclusion of the jury in the perjury trial. In short, the contention of defendants is that the court announced that in his opinion a new trial should be granted, but he felt he had no right to exercise his own judgment.
From an early period in English jurisprudence, the power and duty of the judge to grant a new trial where the verdict is against the weight of the evidence has always been recognized. [3 Blackstone, 387.] The trial court has the right, in either a law or an equity case, to grant a new trial if it is satisfied that the verdict or finding is against the weight of the evidence. And where the chancellor is satisfied, on a reconsideration, that the finding and decree were wrong he should grant a new trial. [Hurley v. Kennally, 186 Mo. 225.] Where the trial court is of the opinion that the verdict is not supported by the evidence, or
All this is well settled and, in fact, is not disputed. But it is insisted that the granting or refusing of a new trial is within the sound discretion of the trial court and, therefore, the appellate court has no right to review the action of the lower court in overruling the motion, especially where the suggestions in support of the motion for new trial, were filed outside of the four days allowed for filing such motion. But this insistence assumes that the trial
In Kansas Pac. Ry. v. Kunkel, 17 Kansas, 1, Justice Brewer, afterwards a distinguished member of the United States Supreme Court, said that the trial judge “has the same opportunity as the jury for forming a just estimate of the credence to be placed in the various witnesses, ■ and if it appears to him that the jury have found against the weight of the evidence it is his imperative duty to set the verdict aside. [Johnson v. Leggett, 28 Kan. 422 [ Williams v. Townsend, 15 Kan. 424.] We do not mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by Mm as against any mere doubts of its correctness. But when
In Dickey v. Davis, 39 Cal, 565, it is said: “If the judge is not satisfied with the verdict, and is convinced that it is clearly against the weight of the evidence, it is his duty to set it aside, even though there may have been some conflict in the testimony.”
In Kansas City Ry. Co. v. Regan, 49 Kan. 1, the court say: “When the judgment of the. trial judge tells him .the verdict is wrong, whether from mistake, or prejudice, or other cause, no duty is more imperative than that of setting it aside, and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. . . . He has no right ‘to stand out of the way’ and against his judgment overrule such a motion. He must approve or disapprove the verdict. If he approves, he may overrule the motion for a new trial; if he disapproves, he should set it aside and permit Another, jury to pass upon the facts. ’ ’ In this case the court held that as it had the knowledge from the record that the trial judge did not approve the verdict, although he refused a new trial, the Supreme Court, having that knowledge, will not hesitate to reverse the judgment and grant a new trial.
In Miller v. Dumon, 24 Wash. 648, it is said: “Generally, where the record discloses that the trial court has expressed the opinion that the verdict is not sustained by the evidence, or is contrary to the weight
In State v. Billings, 81 Iowa, 99, the trial court refused to set aside the verdict, but the record on appeal disclosed that he was of the opinion that it was contrary to the weight of the evidence, and the appellate court held that, therefore, he should- have granted a new trial, and having failed to do so, the judgment should be reversed, independent of the views of the Supreme Court on the sufficiency of the evidence to sustain the verdict.
In Felton v. Spiro, 78 Fed. 576, a case where the record showed that the trial judge did not exercise his judgment and discretion in passing on the motion for new trial, the casé was reversed and remanded for that reason.
In Serles v. Serles, 35 Oregon, 289, the trial court refused to exercise his judgment on. the question whether the verdict was against the weight of the evidence, and overruled the motion on the ground that as there was some evidence to support the verdict he had no power to grant a new trial. The Supreme Court held this to be erroneous; that the trial court must himself pass on the question; that a party is entitled to have his motion for a new trial, for insufficiency of the evidence to justify the verdict or other decision passed upon in pursuance of correct principles of law, and the trial court, having seen the witnesses and observed their manner, must act entirely upon its own judgment in passing on the motion. Accordingly the case was remanded. [See also Clark v. Great Northern Ry., 37 Wash. 537; 2 Am. & Eng. Ann. Cases, 760.]
In the case of Dean v. Fire Assn., 65 Mo. App. 209, the trial court declared, when passing on the motion for new trial, that the verdict was against the weight of the evidence, but acting on the erroneous
The foregoing authorities are not all that could be cited but they are ample to support the view that if it appears from the record that the trial court has refused to exercise or follow his judgment in passing on the motion for new trial, or that he has overruled the same notwithstanding his judgment tells him the verdict should not stand, the appellate court has the power to review such action.
Next comes the question first above propounded, did the trial court in this case exercise his own judgment in passing on the motion for new trial, or did he defer to the jury’s verdict of acquittal in the criminal case, over which he did not preside and about which he knew nothing except that there was an acquittal? This question can only be answered by referring to the judge’s language preserved in the record. It is hereinbefore set out' in full but a synopsis of it is here repeated:
“Mr. Phillip: Your Honor says that you felt a new trial in this case ought to he granted, but you felt that under the legal rule you were not permitted to grant it.
“The Court: That approaches what I said. What I tried to say was this: That in the original trial of this Iba case, if the decision of the case had been left to me, I would have decided for the defendants, but when the case ivas ended I did not feel that the preponderance of the evidence was so greatly in favor of the defendants, as to warrant me in setting the verdict aside. Afterwards, these affidavits were*157 filed against Rise, and that threw such a suspicion in my mind against his testimony, that 1 felt constrained then to set the verdict aside. Afterwards' Rise was indicted tried in the criminal court and acquitted. Then I felt I ought to respect the verdict of that jury . . . and I felt constrained to that, by my respect for the machinery of courts and trials. • Then, if I shut this out . . . and get bach to my otvn conclusions, weighing Rise’s testimony as affected by the suspicions that had been thrown in my mind and everything that I had learned about the case, then I would still conclude that the verdict ought to be set aside, but I feel that I ought to defer and that I am outweighed and overruled by the verdict of this jury and the conclusion of the jury in the criminal court.
“Mr. Phillip: And in substance, that personally, the court feels that the verdict ought to be set aside.
“The Court: Yes, sir; that is it.”
To put it in another way, the court says: “If this case had been left to me I would have decided it the other way, and when the case was ended, I felt that the preponderance of the evidence was with the defendants but it was not so greatly in their favor as to warrant me in setting the verdict aside. I felt this way even before I knew that one of the witnesses was charged with perjury. Afterwardsx when these affidavits were filed, I felt constrained then to set the verdict aside. But I learn that Rise has been acquitted of perjury by a jury in the criminal court and I feel that I ought to respect the verdict of that jury, .and I feel that way because of my respect for the machinery of courts and trial’s, not because my views as to the weight of the evidence have changed. In fact, when I shut out the acquittal of this other jury and pet bach to my otvn conclusions, weighing Rise’s testimony and knowing what I do about the case tried before me, I still conclude that the verdict ought to be
Undoubtedly the trial court was not exercising Ms judgment on the question before him nor following the opinion and conviction he had formed in his own mind when he overruled the motion. On the contrary he was of the opinion that the verdict should be set aside, but, acting on the erroneous view that he should defer to the conclusion reached by another jury in a trial over which he did not preside, and the evidence of which he did not hear, and about which he knew nothing, he overruled the motion. In other words, he abdicated his place and function in favor of the jury in the criminal case. This was error.
The point is made that because the affidavits tending to show perjury were filed after the lapse of four days,' therefore, the appellate court cannot review the trial court’s action in overruling the motion. The question as to what power we would have to review the action of the trial court in refusing to consider matters arising after the lapse of four days is not in this case. Here the motion was filed in time and one of the grounds it contained was that the verdict was against the weight of the evidence. The affidavits of perjury were not submitted as a statutory ground for new trial under section 2022, but to support the claim that the verdict was against the weight of the evidence. And the trial court did not refuse to consider such suggestions but did take them into consideration, and was of the opinion that a new trial should be granted but, acting on an erroneous view as to what he should be governed by, refused to grant the new trial. Whenever a lower court has sustained a motion for a new trial under an alleged erroneous view, the appellate court has never hestitated to review its action and to reverse or sustain such action according to whether the trial court’s view of what he should be go ver end by was correct or not. .Why
The trial court’s view that there was doubt about the sufficiency of. the evidence even before he learned of the charge of perjury was apparently well founded or at least was not unjustified. The distinguished former member of this court who wrote the opinion in this case on its first hearing, Judge Broaddus (himself an exceedingly able trial judge of many years experience) stated in said opinion: “There can be little doubt but what Rise did commit perjury, and we think outside of the affidavits filed his evidence on its face shows that he was not testifying to the truth.” Evidently this was an impartial and unbiased view of the witness’s testimony, since Judge Broaddus was in favor of affirming the judgment on the ground that the appellate court could not review the trial court’s action.
The conclusion reached in this opinion is not based on any view of ours as to what the testimony shows. It is put solely on the ground that the record shows the trial court toas convinced a neio trial should be granted and also shows that he did not follow his own judgment but erroneously took the view that he should be governed by the action of the jury in the criminal court. This was error. He had no legal right to substitute the judgment of that jury for his own judgment. The matter .before him was one question, the one before the jury was an entirely different question. The jjarties were different, the issue was different, and the amount, quality and quantity of evidence required by the law were different.
As the trial court had the opinion that a new trial should be granted but did not follow that opinion on acount of an erroneous view entertained by him, his action is, for that reason reviewable by the appellate court; and the new trial which he should have granted in obedience to his judgment, is
Rehearing
ON MOTION FOR REHEARING.
Counsel for respondent, in their motion for rehearing, contend, with apparent sincerity and much heat, that the appellate court cannot lawfully consider the statements and reasons given by the trial judge, at the time the motion for new trial was passed on, because said statements are no part of the record. The statements of the trial judge in this case were taken down by the stenographer at the time and were duly incorporated in the bill of exceptions and appear in full in the printed abstract of record upon which the case was submitted to us. Passing by the question whether or not this was sufficient to make said statements a part of the record, it may be well to remind counsel of the fact (which they seem to have overlooked or forgotten), that the statements were made a part of the record by express agreement and stipulation on the part of counsel who now complain. The trial court, in overruling the motion for new trial, anounced his view of the case and of the question then before him, and the record shows the following occurred:
“Mr. Phillip: I would like for your Honor to let the record show the remarks your Honor made in overruling defendant’s motion for a new trial.
“The Court: You want to get this whole thing before the court of appeals and let them say, and I wotold be glad for them to do it.
“Mr. Crow: Then your Honor can write out your Honor’s view of this question and I ivill agree to have it made a part of the bill of exceptions.”
In view of the above agreement it is difficult to see how this court could hold that the statements were
Motions for rehearing are given careful and patient consideration. It is suggested that, in drawing them, it is unnecessary to use extravagant, hasty or intemperate language in describing or adverting to the views of the court or its ruling on different points. Language of this character does not add to the force of such motions. Its employment may perhaps serve a useful purpose in “letting off-steam” when counsel is irritated and disappointed. But, after this purpose has been accomplished, it is better to destroy them and rewrite the motion, leaving such expressions out, thus consigning them to oblivion where they will- soon be forgotten. Motion for rehearing is overruled. Ellison, P. J., concurs. Johnson, J., having dissented from the original opinion, thinks a rehearing should he granted, but concurs in what is said concerning objectionable language used in motions for rehearing.