Fitzjohn v. St. Louis Transit Co.

MARSHALL, J. This is an action for ten thousand dollars damages for personal injuries alleged to [78] have been sustained by the plaintiff, while a passenger-on and while alighting from one of the defendant’s ears, at the corner of Jefferson avenne and Morgan street,, in the city of St. Lonis, on July 7, 1901. There was a verdict for the defendant, and thereafter the court sustained the plaintiff’s motion for a new trial, upon the ground that the verdict was against the weight of the evidence, and the defendant appealed. So far as necessary the facts will be stated in the course of the opinion. I. The law applicable to cases of this character is now well settled. The trial'court has a discretion to grant one new trial, and this court will not interfere with its exercise of that discretion, however much it may disagree with that court upon such a ruling, where there is any substantial evidence to support it, unless the case is such that no verdict in favor of the party to whom the new trial is granted could ever be allowed to stand. [Hoepper v. Southern Hotel Co., 142 Mo. l. c. 387; Haven v. Railroad, 155 Mo. 216, l. c. 232; Kuenzel v. Stevens, 155 Mo. l. c. 285; Grace v. Railroad, 156 Mo. l. c. 301; Graney v. Railroad, 157 Mo. l. c. 678; Coleman v. Cole, 158 Mo. l. c. 260; Roberts v. Tel. Co., 166 Mo. l. c. 385; Herndon v. Lewis, 175 Mo. l. c. 125; Emmons v. Quade 176 Mo. l. c. 29 ; Ottomeyer v. Pritchett, 178 Mo. l. c. 165; Warner v. Railroad, 178 Mo. l. c. 129.] The defendant admits the existence of the general rule, but claims that the trial court acted arbitrarily in this instance, and hence this court should review his ruling, because in such instance the trial judge did not exercise a judicial discretion. This contention finds apparent, but not real, support in Haven v. Railroad, 155 Mo. l. c. 232, where it was said: “The judgment of the circuit court is affirmed on the sole ground that in granting the plaintiff a new trial that court exercised a dis [79] cretion which is vested in it, and which this conrt will not review except when arbitrarily exercised, which can not fairly he said to be true in this case.” What was there meant by the discretion being arbitrarily exercised, was, that there must be no substantial evidence to base such a ruling upon or that the case was such that no verdict in favor of the party to whom the new trial was granted could ever be allowed to stand. Or, otherwise stated, that there was no legal basis for such a ruling. The reason underlying the rule has been heretofore pointed out to be, that, this court will not weigh conflicting evidence, in actions at law, and that the trial judge has a discretion to grant one new trial in any case legally made out, and this court will not interfere except in the cases stated. It only remains to apply the rule to the case at bar. The plaintiff’s evidence tends to show that when the ca.r was approaching Jefferson avenue, going east, one of her companions signalled to stop, and that the car did stop on the east side of Jefferson avenue, and while plaintiff was in the act of getting off of the car, and had stepped down on to the running board on the side of the car, the conductor gave the motorman a signal to go ahead, and the car was started, and she was thrown to the street and injured. The defendant’s evidence tends to show that before the car reached the east side of Jefferson avenue, and while it was still in motion, the plaintiff attempted to get off of the car and was thrown down and injured. Both sides claim that the physical facts sustain their theory, and both sides claim that the great preponderance of the evidence is in their favor. This clearly brings this case within the rule of law above stated.' The jury believed the defendant’s witnesses. The court disagreed with the jury and, believing the plaintiff’s witnesses, granted a new trial. There was substantial evidence to support both theories. If the plaintiff’s [80] theory of the case is true, a verdict in her favor would have a legal basis to rest upon. Under such circumstances the action of the trial court in this case was within the rule. It is claimed, however, that during the progress of the trial, the judge cross-examined some of defendant’s witnesses very severely, and thereby discredited them before the jury, and that this shows that he was prejudiced in favor of the plaintiff, and hence he acted arbitrarily in granting the plaintiff a new trial. There is no necessary or logical connection between the act of the judge in cross-examining the defendant’s witnesses and his act in granting the plaintiff a new trial. The judge had a right to do both of said acts, or to do either, without doing the other. Either or both might afford ground for the belief that he was a prejudiced in favor of the plaintiff, but the law affords another remedy against the prejudice of the judge. The verdict of the jury shows that the cross-examination of the defendant’s witnesses by the judge did not materially or injuriously affect the defendant’s case before the jury. But if it should be conceded that the judge was severe in his cross-examination of the defendant’s witnesses, and if it be conceded that the judge believed the plaintiff was entitled to recover, and hence granted her a new trial, it would afford no ground for this court to interfere in this case, for there was substantial evidence to support the plaintiff’s case, therefore, a verdict in her favor would rest upon a legal basis, and hence it was within the discretionary power of the trial judge to grant her a new trial. The judgment is affirmed on the sole ground that the trial court had a discretion in granting the new trial, and under the rule stated, this court will not interfere. All concur.