Canterbury v. Kansas City

ELLISON, J. This action is for damages to plaintiff on account of personal injuries suffered by his wife in falling on one of defendant’s sidewalks. There was a verdict for the plaintiff in the trial court. Afterwards defendant "filed a motion for new trial which the court sustained, on the ground that “the verdict was against the Aveight of the evidence as to the obstructions of the sidewalk; and as to contributory negligence of plaintiff’s wife.” Whereupon the plaintiff appealed from such order. It seems that plaintiff’s wife, herself, brought an action against the defendant city for damages alleged [4] to have resulted to her from the same fall, and that she failed in such action. That, however, in an exhaustive opinion by Judge Lamm, was held not to be res ad ju-dicata as to this plaintiff. [Womach v. St. Joseph, 201 Mo. 467.] But we find ourselves not able to sustain plaintiff’s appeal. The ground assigned by the trial court, that the verdict is against the weight of the evidence, is a ground that is not reviewable here except in those extreme cases where there is no substantial evidence in behalf of the successful party. If there is any substantial evidence in favor of the losing party which would have sustained the verdict had it been for him, then the appellate tribunal will sustain a court’s discretion in granting the new trial. This is done more for the reason that the matter of passing on the weight of evidence is the province of the trial court. But one new trial can be granted, on that account but when that is done we do not interfere short of an abuse of discretion. We discussed the question quite recently in Karnes v. Winn, 126 Mo. App. 712, 105 S. W. 1098, where authorities may be found. [See, also Crow v. Crow, 124 Mo. App. 120.] This view makes it unnecessary to go into several questions raised in the exhaustive briefs presented by respective counsel. An examination of the evidence in the cause discloses very clearly that there was substantial evidence which tended to support defendant’s defense, and the judgment must be affirmed. All concur.