Baker v. City of Independence

ELLISON, J. — Plaintiff was injured by falling on one of defendant’s sidewalks and sued defendant for damages, wherein she recovered a judgment for $1,800. On defendant’s application a new trial was granted and plaintiff appealed from that order. . The grounds or reasons stated by the trial court for sustaining the motion are as follows: “That the verdict is excessive in the amount of damages allowed plaintiff; because the verdict was against the weight of the evidence; because the defendant has discovered new and material evidence since the trial of the-cause.” If any one of the reasons' assigned by the trial court is sufficient to justify its action the order must stand and the appeal held to be not well grounded. One of the reasons given is that the verdict is against the weight of the evidence. That is a reason which lies primarily with the trial court. Its prerogative in that respect is much broader than that of the appellate court, since it has much better means of correctly passing on the weight of evidence. Hence its discretion will not be interfered with unless it clearly appears to have been exercised in a manner purely arbitrary. Baughman v. Fulton, 139 Mo. 557, 560; Lawson v. Mills, 130 Mo. 170; Longdon v. Kelly, 51 Mo. App. 572; Mason v. Onan, 67 Mo. App. 290. This question has been recently considered by the supreme court and the conclusion reached after a review of former decisions that the trial court’s discretion is not limited by the statute giving the right of appeal from an order granting a new trial. That such discretion is as full as before the enactment of such statute. Haven v. Railway, 155 Mo. 216; 55 S. W. Rep. 1035. There is nothing in the record to suggest in any way that the trial court exercised what is called an arbitrary discretion in granting the new trial and henpe we can not inter [183] fere. This view makes it unnecessary to notice other grounds assigned by the court, and the judgment will be affirmed. Smith, P. J., concurs; Gill, J., absent.