112 Mo. App. 640 | Mo. Ct. App. | 1905
This is an action against the defendant for injuries alleged to have been received by plaintiff while in defendant's employ and as the result of its negligence. There was a finding for the plaintiff which the court set aside on the ground that it had committed error in not giving a peremptory instruction to find for defendant. The plaintiff appealed from this action of the court.
“We started to the yards and when we got pretty close to the switch there was a freight train on the house track, back of the depot, where we unloaded the stuff. The train was in there and started back towards us. Demaree ordered the car run back the other way. We ran back for a little ways and then the train stopped and pulled up on the main track. Then he told us to pump the car and get into the switch. We got up towards the switch pretty well and the train come back and he told us to pump the car back again and to pump like h — 1. .*643 We started the other way and was going at a pretty high rate of speed and run back I suppose half way betwixt the Santa Fe and Burlington depots, and Demaree slapped his foot on the brake without warning and gave the car a sudden check and jerked me off the car in front and the car run over me. The front wheel of the car run across my leg and the hind wheel went right across my knee and I fell in front of it.”
He further stated that warning was always given when the car was to be stopped. On cross-examination he stated:
“When the brake jerked me loose, I started backwards and I went to jump and get off the track and the car was coming towards me and of course I was like every one else, I was trying to get out of the way. Yes, Sir, I went to jump after it jerked me loose. I seen it was going to make me fall, but it caught me. I tried to jump southwest, but I did not jump at all. The handlebar knocked me off. . . . and knocked me down after this sudden jerk, after the car jerked my hands loose, and the car was coming on and it knocked me off in front of it. . . . The car didn’t run but a few feet after I fell off. The car ran six or eight feet after it ran over me.”
The contention of the plaintiff and appellant is that there was some evidence to support the verdict and that the action of the court in setting it aside on the ground that he did not make out a case, was error. Plaintiff’s testimony on examination in chief was, as stated, that Demaree suddenly and without warning applied the brake, which had the effect of loosening his hold upon the handlebar and throwing him backward onto the track. On cross-examination, after equivocating to some extent, he became positive that he was jerked loose from the handle bar; and that after being so jerked loose he saw he was about to fall and attempted to jump, but was prevented from doing so by being struck by the handles and knocked off onto the track. It appears to us
The action of the court can be upheld on another ground stated in the motion for a new trial, viz.: “Because the verdict is against the evidence and against the weight of the evidence.” The men who were with plaintiff on the handcar, except Demaree — who was dead— testified on the trial. One of them, named Livingston, stated that he did not notice any “unusual effect of putting on the brake.” Another witness of the same name stated that, he did not notice the effect of the brake being applied at the time, and, “I did not notice anything unusual just before he fell off.” Charles Maddox, another witness, stated: “Forest Demaree applied the brake. I do not think he did it in the usual way. I did not notice any unusual effect from its being applied. I do nofc know of any reason why Morelock should have fallen off.” He further stated that plaintiff told him that “he stepped on some iron and it threw him off. He told me this shortly after it was done, in the presence of all the witnesses.” Plaintiff, when recalled, failed to deny the statement of this last witness. Conceding that there, was some evidence to support the verdict, the great preponderance thereof was in favor of the defendant.
Although the court assigned a wrong ground for granting a new trial this court will uphold the action of the trial court if it can find support on any other ground recited in the motion. [Hoepper v. Hotel Co., 142 Mo. 378; Milling Co. v. Transit Co., 122 Mo. 258; Millar v. Car Co., 130 Mo. 517; Hewitt v. Steele, 118 Mo. 463.]
In view of the fact that notwithstanding there may
The plaintiff’s position is, that if there was any evidence to support the verdict the court was in error for granting a new trial for the reason given. And in support of his position cites Gannon v. Light Co., 145 Mo. 502, and other cases to the same effect. But the rule in these cases has been modified by the Supreme Court in May v. Crawford, 150 Mo. 504. However that may be, there should be some substantial evidence to support a verdict. No court has ever held otherwise, to our knowledge. The cause is affirmed.