Casey v. St. Louis Transit Co.

BRACE, P. J. — The plaintiffs are husband and wife, and this action is brought by them to recover the statutory damages of $5,000 for the death of their minor son, John R. C. Casey, who, on the twenty-fourth of November, 1901, while a passenger on one of defendant’s cars going west, was struck and killed by one of defendant’s cars going east. There was a verdict for the defendant, and, thereafter, the court sustained plaintiffs ’ motion for a new trial, on the ground that the verdict is against the weight of the evidence, and the defendant appealed. The undisputed facts are that the deceased was a passenger of the defendant, riding on the rear platform of one of its cars, going west on Clark avenue in the city of St. Louis; when falling therefrom, he was struck and killed by one of defendant’s cars going east on said avenue. The evidence for the plaintiff tended to prove that the deceased was standing on the rear platform of the [232] car on -which, he was a passenger, near the gate thereof ; that the car was going at the speed of about twenty miles an hour, and was “jolting up and down,” when the gate flew open, and defendant falling from the platform, through the opening thereby made, was immediately struck and killed by one of defendant’s cars going east on its other track. The evidence for the defendant tended to prove that after the deceased took passage upon defendant’s west-bound car, and when the same was proceeding along Clark avenue, the deceased voluntarily got upon the rail or dash of the rear platform, and leaning around the southeast corner tried to turn the sign on the rear end of the car, when he fell from the dashboard to the street between the two tracks, and just as he fell was struck by the east-bound car and was killed; that the g-ate was closed at the time. There was a sharp conflict in the evidence. The case was submitted to the jury upon proper instructions, under which the jury might have found for the plaintiff or the defendant, and the verdict in either event would have had the support of substantial evidence. The law in such cases is well settled, and as declared in the most recent case in which the previous cases are cited is as fob lows: ‘ ‘ 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.” [Fitzjohn v. Railroad, 183 Mo. l. c. 78.] Applying this rule to the case in hand, the order of the circuit court granting a new trial on the ground stated is affirmed. All concur.