Blackwell v. Metropolitan Street Railway Co.

ELLISON, J. — Plaintiff was injured by falling from one of defendant’s street cars as he was preparing to alight therefrom. He alleged that his fall was caused by defective condition in the platform of the car. He brought this action for damages and recovered judgment in the trial court. There was evidence tending to prove that plaintiff took two bundles with him on the car, which he left on the back platform. That as the car approached the street crossing where he was to get off he came out onto the rear platform, took a bundle in each hand and approached the side of the platform next to the steps, when his foot went into or turned in an opening in the platform made by a worn or defective board. This threw [658] him off while the car was yet in motion, whereby he received considerable injury. At the time, he did not know what disturbed or turned his foot, but there was evidence tending to show it was the defect to which we have just referred. The entire evidence in plaintiff’s behalf amply justified the court in refusing the demurrer to the evidence which defendant offered at the close of the evidence for plaintiff and again at the close of the whole evidence. The argument advanced by defendant on this head would lead to usurping the functions of the jury. We do not discover any warrant for criticism of the instructions. Every phase of the case was properly covered. Under the facts developed the change made by the court in defendant’s instruction No. 7 was proper enough. At any rate, no possible prejudice to defendant’s case was caused by the alteration. It is' next insisted that the verdict is excessive. The nature of plaintiff’s damages does not permit of accurate measurement. The amount, one thousand dollars, when compared with plaintiff’s statement of his injury; does not strike us as being sufficiently disproportionate to justify our interfering with the conclusions of the jury. The final objection made by defendant relates to misconduct of plaintiff’s counsel in arguing the case to the jury. These objections do not appear in the record in a way which we can notice. The matters to which objection was made are not set forth in the bill of exceptions as having occurred. They are set forth in the motion for new trial and in affidavits in support of the motion, and these are incorporated in the bill of exceptions. It sometimes occurs that matters arising, or of which knowledge comes to the complaining party after the trial, are put in motions for new trial and are necessarily supported by affidavits. But where matters transpired during the trial between court and counsel, the bill of exceptions should state that such matters trans [659] pired. Putting such things in the motion for new trial does not prove them, nor are they to he shown by affidavits. They must be by the affirmative, statement of the bill. We explained a similar objection in Harless v. Railroad, 123 Mo. App. 22. The judgment is affirmed. All concur.