Lehnick v. Metropolitan Street Railway Co., 141 Mo. App. 158

Lehnick v. Metropolitan Street Railway Co.

141 Mo. App. 158 | Mo. Ct. App. | 1910

JOHNSON, J.

This is an action for personal injury alleged to have been sustained by plaintiff while riding as a passenger on one of defendant’s cable cars then operated by defendant. The case has been under consideration by us on two other occasions. Our first opinion and judgment were set aside and a rehearing granted. After a rehearing, we remanded the case for another trial, which resulted in plaintiff’s favor and again defendant has appealed.

The case Avill be found reported in 118 Mo. App. 611, where a history and statement of its character may be found, making a repetition unnecessary. We have concluded that in view of the second verdict in plaintiff’s favor, the trial court did not abuse its powers and discretion in refusing to sustain defendant’s demurrer to the evidence and in refusing to grant a new trial based on the ground of there not being any testimony to make plaintiff’s case of sufficient substance to go to *161the jury. In our judgment, the opinion in Bartley v. Railway Co., 148 Mo. 124, relied upon by defendant, does not require that we find error in the regard mentioned.

The petition charges specifically where plaintiff was riding on board the car, viz., the platform. Yet plaintiff’s instruction No. 3 submits the hypothesis of his being either there or on the steps leading to the platform. We cannot give ear to defendant’s complaint of this, from the fact that it, in terms, uses the same language in its instructions Nos. 6 and 18, which were given by the court.

Other instructions, including those for either party, fully covered every phase of the case and we would not be justified in saying that the jury was misled or that the legal points involved were not fully complied with in respect to the direction which a jury should receive from a court. Instruction No. 11 was refused as offered and given as amended by the court. The amendment was proper. A confusing number of instructions were offered by defendant, twenty-nine in all. Fifteen of these were given and that number was too many.

Complaint is made of prejudice, bias and passion of the jury and of consequent excessiveness of the verdict. Such complaint was also made in the motion for new trial. The verdict was for $2,500. On the former trial it was for $1,000, on practically the same evidence. By reference to the two former opinions in the case it will be seen that, for reasons there stated, we have not been very favorably impressed with plaintiff’s case. But after all is said that can be said against the righteousness of the verdict, we are compelled to admit that in all respects it is supported by substantial evidence. The evidence in the present record differs somewhat from that considered in our opinion in the 118 Mo. App. report, and does not appear to us to preponderate so much bn the side of defendant. Were we sitting as triers of *162fact we would still decide the case in favor of the defendant, but our functions cease when we find the verdict supported by substantial evidence and that the trial was conducted without prejudicial error. The juries that have faced the parties and witnesses and have heard the evidence have not entertained our view of the facts, but we have no cause to say the last jury were influenced by passion or prejudice, nor would we be justified in arrogating their functions to ourselves. The injuries of plaintiff were severe and we cannot hold, as a matter of law, that a verdict of $2,500 is excessive. This being true, the fact that a former jury assessed the damages at only $1,000 does not stamp the present verdict as the product of passion or prejudice. Within the limits fixed by the evidence, each jury in the assessment of damages, had considerable latitude, and, since we find the last verdict to be within reasonable evidentiary limits, we cannot do otherwise than to give it our approval.

Accordingly, the judgment is affirmed.

Ellison, J.,' concurs; Broaddus, P. J., dissents.