117 Mo. App. 371 | Mo. Ct. App. | 1906
This action is for personal injury alleged to have been received by plaintiff by falling from a wagon in attempting to drive over a crossing and it is here on second appeal. By reference to 110 Mo. App. 686, the nature of the case will be ascertained. The verdict in the second trial was for the defendant, and on motion for new trial it was set aside.,, The defendant appealed from that order.
The trial court sustained the motion generally, without specifying any particular .reason. The motion contained a complaint that the verdict was against the weight of the evidence. That is a cause which addresses itself particularly to the trial court. It has more rightful power over verdicts attacked for that cause than has an appellate court, and unless we can discover an abuse of its discretion in that regard, we will not disturb its conclusion. In this case, the only substantial question, in reality, relates to the defense of contributory negligence and, on that head, we find ourselves not prepared to say that the court was without right to order a new trial. [Parker v. Cassingham, 130 Mo. 350; Bank v. Wood, 124 Mo. 72; Bemis Bros. v. Ryan, 74 Mo. App. 627; State ex rel. v. Todd, 92 Mo. App. 1.]
Sixteen instructions were given for the defendant. While no rule can be laid down as to the exact number of instructions which should be given in a cause, yet, it is burdensome to a case and, doubtless, confusing to the jury to have to consider a much greater number than is necessary. In view, of the first instruction given for plaintiff, we do not see any harmful error in refusing his fifth, ■
The order granting new trial is affirmed.