Harviston ex rel. Williams v. United Railways Co.

GOODE, J. — Plaintiff, who is a negro boy, was hurt, as he alleges, in a fall from the steps of a street car at the intersection of Cass avenue and Eighteenth street, December 1, 1906. He had come to that point on another car, holding a transfer entitling him to take passage south on an Eighteenth street car. He carried a bundle in his right hand and a basket in his left, and according to his testimony, the car stopped at the corner to receive passengers, three or four persons were waiting to get on the car, and after they had done so plaintiff placed one foot on the lower step and was in the act of setting the other foot down, when the conductor [43] signalled the motorman to go ahead and the car started with a jerk, throwing plaintiff into the street and hurting him. According to the testimony of several other witnesses three passengers who were waiting at the corner, got on the car which then moved forward, and as it did so plaintiff came running around the corner, chased the car southward nearly to an alley, then stumbled and fell in the street. There was a verdict for plaintiff for $250 and it is contended this is so opposed to the weight of the evidence it ought to be set aside. A perusal of the record has left an impression against the truth of plaintiff’s story, but the jury found it was true and the careful trial judge who heard the witnesses, refused to set aside the verdict as against the weight of the evidence'. Whatever assistance defendant could derive from instructions to the jury regarding this point was given in three ample charges, advising the jury they should look to the manner and demeanor of the witnesses on the.stand, their interest or want of interest, whether they had bias or feeling, means of knowledge of the facts, the reasonableness or unreasonableness of their stories, and the circumstances related by them; further, that the jury were not compelled to accept as true any statement made by any witness, unless the jury found it to be true after- considering it along with the other facts and circumstances in evidence; that while plaintiff was a competent witness, and all statements made by him against his own interest the law presumed to be true, yet his statements in his favor should be given such credit as the jury, under all the facts and' circumstances, deemed they ought to have. This assignment will be overruled. Plaintiff is a minor and sued by next friend. A point is raised against the judgment because proof was not introduced at the trial of the appointment of the next friend. No question was made about this matter until the motion for new trial was filed. Plaintiff appeared by his attorney and as the judgment was in his [44] favor, it could not be reversed if the next friend had not been appointed. Much less can it he reversed because proof of the fact was not made, as alleged, there being no issue about it. [R. S. 1899, sec. 672; Holton v. Towner, 81 Mo. 361; Brandon v. Carter, 119 Mo. 572; Randolph v. Railroad, 18 Mo. App. 609.] The judgment is affirmed. All concur.