85 Mo. App. 495 | Mo. Ct. App. | 1900
— This is an action to recover damages for the wrongful ejection of plaintiff by the defendant from one of its passenger trains. There was a trial and judgment for plaintiff from which defendant has appealed.
I. The defendant assigns for error the action of the trial court in refusing its second instruction which told the jury that if they found for plaintiff they should assess his damages at such sum, not exceeding twenty-five hundred dollars, as they believed from the evidence would reasonably compensate him for the amount paid out for the whole ticket from Arkansas City, Kansas, to Pana, Illinois, not exceeding eighteen dollars, and for the trouble and inconvenience caused him, if any, by reason of being ejected from the ear; and for the injury to his feelings, if any, including humiliation, insult and indignity, caused by reason of being rejected from the car. The general rule -is that pain of mind — injured feelings — when connected with bodily injury is the subject of damages, but must be so connected in order to be included in the estimate unless the injury is accompanied by circumstances of malice, insult -or inhumanity. Trigg v. Railway, 74 Mo. 147; Connell v. Tel. Co., 116 Mo. 34; Deming v. Railway, 80 Mo. App. 152; Strange v. Railway 61 Mo. App. 587. In the present case it is not disclosed by the evidence that the ejection of the plaintiff from the defendant’s train resulted in any bodily injury or was accompanied by circumstances of malice, insult or inhumanity,
II. The defendant’s further assignment is that the trial court committed error in refusing to grant a new trial on the ground that the preponderance of the evidence against the verdict was so strong as to raise the presumption of prejudice or partiality on the part of the jury. By reference to the motion for a new trial it will be seen- that no such ground is therein specified. It is a rule of appellate practice in this state that no assignment of error will be considered by an appellate court unless a like error was specified in the motion for a new trial that is so familiar that the cases to that effect need not be cited. It is true that one of the grounds specified in the motion was that “the verdict was against the evidence,” but this was not the same ground as that specified by defendant in its. assignment of error. As seen by the cases hereinafter referred to, a reviewing court will not ordinarily disturb a verdict because against the evidence but will do so where the preponderance of the evidence against the verdict is so strong as to raise the presumption of prejudice, passion, corruption, gross ignorance or partiality on the part of the jury. Price v. Evans, 49 Mo. 396; Spohn v. Railroad, 87 Mo. 74; Walton v. Railroad, 49 Mo. App. 620; Empey v. Railroad, 45 Mo. App. 422; Garrett v. Greenwell, 92 Mo. 120; State v. Primm, 98 Mo. 368. The attention of the trial court was not called by the motion for the new trial to any such ground, and therefore it can not be specified in the assignment of errors, or, if so, noticed by us.
The judgment must be reversed and cause remanded.