| Mo. | Feb 9, 1897
This is an appeal from an order of the trial court setting aside a verdict and judgment for plaintiff for one cent damages on plaintiff’s application, and granting to her a new trial.
Defendant prosecutes this appeal from that order, contending that plaintiff had no cause to complain, as the verdict on the evidence should have been for defendant in the first instance, and that its instruction for a nonsuit as prayed at the close of the case should have been given.
If defendant is right in its contention, then of course plaintiff could not complain as set out in her motion for a new trial: “I. That the verdict and damages assessed are the result of bias and prejudice on the part of the jury and is grossly inadequate and absurd. II. That the verdict is the result of a compromise entered into between the jurors,” etc.
We do not think that defendant can fairly maintain itself on that contention, however, and consider the action of the trial court in refusing defendant’s instruction asking for a nonsuit against plaintiff at the close of the trial proper.
This case upon the same state of facts, so far as regards plaintiff, was before the 8t. Louis court of appeals, on an appeal from a judgment against defendant for $1,600, and is reported in 55th volume of our Appeal Reports at page 390, and while there the question as to the sufficiency of the testimony offered on part of plaintiff to warrant the action of the trial court then in submitting the case to the jury was fully discussed, and on that point the trial court was sustained, but the case was reversed and remanded for a new trial on account of error committed in the giving of an improper instruction in plaintiff’s behalf.
The statement of facts as detailed by that court
In passing upon an application to nonsuit the plaintiff, which is but a demurrer to the evidence offered in plaintiff’s behalf, every inference of fact in favor of the plaintiff from the evidence, which the jury 'might have inferred with any reasonable degree of propriety, the court must indulge.
The evidence for the plaintiff was that this elevator, from which plaintiff’s son fell, was used chiefly after 6 o’clock in the evening for the purpose of conveying messenger boys, with dispatches and telegrams from the various news centers of the city, to the office of the defendant on the fifth floor of its building; that there existed from the time the elevator started on its journey upward or downward, until it reached its destination, an unguarded space or opening in the cage where passengers passed out into the recess in the wall of the elevator chute, before reaching the door, that would permit them to pass into the open hallway leading to and from the elevator, into which persons riding in the elevator were liable to fall if they should stumble or for any cause lose their balance while the elevator was ascending or descending on its journey; that the motion of the elevator was unsteady; that it had an unusual lateral vibration which would cause it to shake “hard, very hard” or “it shook a terrible lot,” to use the language of the boy, Willis, who was riding with plaintiff’s son at the time he met his death; and that at the time of the accident the elevator was in charge of and being operated by a boy of only fifteen years of age, who, according to his own testimony, was at the time of this accident looking up at a knot in the elevator rope and was only attracted to the position of plaintiff’s son in the open recess in the wall of the elevator chute by his cry for help.
By legislative enactment in many of the sister states it has been made negligence per se to use an elevator cage that is left unguarded at its entrance, or so constructed that a passenger can slip or fall into the open doorway while the elevator is in motion. And, in others, laws have been enacted out of consideration for that high estimate placed upon the life and limb of the citizen required to use these dangerous appliances of modern necessity, making it unlawful to employ a person under the age of eighteen years to conduct and operate an elevator. Thus indicating how reasonable men elsewhere consider the question of the use of elevators with unguarded cage doors and elevators operated by boys of tender years.
If, then, the trial court committed no error in submitting the case to the jury upon the facts as shown, has it erred in setting aside the verdict of the jury as rendered? This court has always held that the granting of a new trial rests peculiarly within the discretion of the trial court, and that as this court will not undertake to estimate the comparative value, or weigh the force of all the conflicting testimony offered at the trial, that it is a high and imperative duty, as well as a discretion, that trial courts should never hesitate to exercise in the interest of fairness and honesty where verdicts have been brought about through bias, prejudice, or partiality, miscalculation upon or misunderstanding of the testimony (to grant new trials) that injustice may be prevented and a literal “veredictum” be recorded; and that this court will not interfere with the exercise of that discretion unless it plainly appears that it has been arbitrarily or unreasonably exercised.
“By their verdict the jury found that the boy’s death was occasioned by the negligence of the defendant in respect to its elevator. Having so found, it became their duty, under the law, to ascertain the extent of plaintiffs’ injury and award them reasonable compensation therefor. They were instructed by the court, that if they found for plaintiffs they should assess their damages at such sum as they might believe fro in the evidence would be a fair compensation for the loss of the services of their son, from the time of his death until he would arrive at the age of twenty-one years, less the cost of his support, and also the necessary expenses incurred for his funeral and burial, not exceeding $5,000.
“And yet, in face of the instructions of the court and uncontradicted evidence showing a net profit of $12 per month to plaintiffs from his wages, an actual outlay by them of $150 for his funeral, the jury assessed the damages sustained by these parents in the loss of the services of their son, at the sum of one cent. In cases of this nature the general rule is that verdicts will not ordinarily be disturbed merely on account of the smallness of the damages awarded. But this rule is subject to the exception, that where the damages are such as. to induce the conviction that the verdict was the result of either passion, prejudice, or partiality, or that the jury have shrunk from deciding the issues submitted to them, the court should interfere.”
The order and judgment of the trial court is affirmed.