Corum v. Metropolitan Street Railway Co.

ELLISON, J.

Plaintiff became a passenger on one of defendant’s cable cars and claims that she was injured through the careless management of the car by defendant’s servants. She recovered judgment for four thousand dollars.

This case is here on a second appeal. It will be found reported in 113 Mo. App. 631, where a statement of the facts can be had. It is there shown that plaintiff was thrown to the street and severely injured by reason of the car being started while she was in the act of alighting therefrom. It will likewise be seen that we deemed she had a good cause of action, if properly proven, and that the case was remanded on account of erroneous instructions. At the last trial all error was disclaimed by defendant’s counsel, on argument of motion for new trial, save that the verdict was against the great preponderance of the evidence and was excessive.

It was made a matter of record that when the motion for new' trial was called for argument the trial court asked for the view's of counsel on the points upon which he relied. He answered that there was nothing sufficiently objectionable in the instructions to justify the court in granting a new trial; that “the verdict in the case was for $4,000, and there are two things to which I wish to call your honor’s attention in connection with the verdict. The first is that the verdict is against the weight of the evidence, and the other is that it is excessive.” There was thus withdrawn from the court’s consideration all else in the motion save the weight of the evidence and excessiveness of the verdict. [Doner v. Ingram, 119 Mo. App. 156.]

The weight of the evidence is matter exclusively for the determination of the trial court. It is only when there is no substantial evidence that an appellate court interposes in behalf of the losing party. [State v. Woodward, 171 Mo. 593; Rattan v. Electric Co., 120 Mo. App. 270; Fullerton v. Carpenter, 97 Mo. App. 197; Veale v. Green, 105 Mo. App. 182; Hurley v. Railway, 120 Mo. App. 262.]

The only complaint left to defendant is the insistence of excessive verdict, which may include prejudice and passion of the jury. We have gone over the evidence and do not consider that it would justify us in remanding the cause or in directing a remittitur. At the former trial a substantial sum was awarded the plaintiff. In the trial which gave rise to the present appeal another substantial sum was allowed. It has received the approval of the trial judge, who considered the amount not too large.

The judgment is affirmed.

All concur.