Burgess, J.
The plaintiff appealed from an order of court setting aside the verdict of a jury and grant[538]*538ing defendant a new trial. By the verdict plaintiff was awarded $5,000 for the death of his wife, Nellie I. Kreis, who was run over and kiíled by one of defendant’s cars at or near its depot at Webster. Groves, in St. Louis county, on the morning of April 19, 1891.
The deceased left her home in Webster Groves early in the morning to take the train by which she was killed, for the city of St. Louis. She lived in a northwesterly direction from the station and had her election to go on a plank walk extending some distance along the east side of defendant’s right of way near to the depot, or enter upon the railroad right of way, as she and other persons in the neighborhood had been •accustomed to do, and go down a path, which was between two railroad tracks running east and west. The evidence was conflicting as to whether she entered upon defendant’s right of way at what was called by the witnesses Murphy’s crossing or near to and east of the crossing. The distance from the station to this crossing is about twelve hundred feet.
Deceased had been a resident of Webster Groves for about eighteen months; had frequently taken passage on the train by which she lost her life; was familiar with the track and surroundings, and knew the time of the arrival of the train, which was about 9 A. M., but on the morning of the accident was a few minutes late. On that morning it was misting rain; Mrs.. Kreis had an umbrella over her right shoulder and a basket of eggs in her left hand. She did not see the train before it struck her.
The south track was used by trains en route to St. Louis and the north track for those going west. There was a switch or spur leaving the south track of the railroad about four hundred feet east of Murphy’s crossing, and it was near the head of this spur or switch that deceased approached near enough to the south [539]*539track to be struck by the beam or deadwood of the engine attached to a train which was proceeding eastward at a speed of about twenty miles per hour, or in front of it, and was killed.
The space between the two tracks was eight feet, five and one half inches, and she was on this space all the time until the moment of the collision, when she stepped close to the rail, between two ties, or in front of the train. She was never on the railroad track, if at all, until just at the instant that she was struck by the train. Those in charge of the train had an unobstructed view of her for near nine hundred feet before it collided with her, while their evidence was that they did not discover her perilous position in time to check the speed of the train, in time to prevent the accident. As is usual in such cases the evidence was conflicting as to whether any danger signals were given or not.
On a former trial of the cause a verdict in favor of plaintiff in the same amount, $5,000, was set aside on motion of defendant and a new trial granted on the ground that the court permitted the introduction of improper testimony, and gave improper instructions to the jury.
The right of the plaintiff to appeal from the order sustaining defendant’s motion and granting a new trial is not questioned, but it is insisted by plaintiff that the new trial was improvidently granted, because there was no error of law committed during the trial of the cause prejudicial to the defendant, and one new trial having been granted to it the court had no power to grant it another new trial because of the insufficiency of the evidence to support the verdict.
I. By section 2241, Revised Statutes, 1889, it is provided that “every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.”
[540]*540The ground upon which the order granting the new trial from which plaintiff appealed is not specified of record. While the court in sustaining the motion and granting the new trial rendered a written opinion giving his reasons therefor, it was not spread upon the record of the court, hut merely filed with the papers in the cause, which did not make it a part of the record. Hewitt v. Steele, 118 Mo. 463.
There were numerous causes assigned why a new trial should be granted as set forth in the motion, and if the action of the court in granting it can be sustained upon any one or more of the grounds assigned it is the duty of this court to do so. Hewitt v. Steele, supra; Bank v. Wood, 124 Mo. 72.
A careful examination of the evidence as disclosed by the record as well also as of the instructions given and refused, has satisfied us that there were but two grounds assigned in the motion upon which the action of the court can possibly be upheld: First, the insufficiency of the evidence; second, the refusal of the sixth instruction asked by defendant.
With respect of the first proposition, it is insisted by counsel for plaintiff that as one new trial had already been granted defendant, on the ground that the court permitted the introduction of improper testimony and gave improper instructions, the court had no power to grant defendant another new trial on the ground of the insufficiency of the evidence, and that its action in granting the second new trial can not be sustained upon that ground. McShane v. Sanderson, 108 Mo. 316, is relied upon as sustaining that contention.
While it may be conceded that that case seems to hold that where one verdict has been set aside and a new trial granted for any cause another new trial can not be granted to the same party on the ground that [541]*541the evidence is insufficient to support the verdict, or that the verdict in the. result of bias, it must be considered with respect to the facts upon which it was decided, and when this is done we submit that what was said with respect to the matter now under consideration was not necessary to a decision of that case.
In that case one new trial had been granted plaintiff on the ground that the verdict was against the weight of the evidence. Another trial was had resulting in a verdict in favor of the plaintiff as did the former trial, and, on motion being filed by plaintiff for a second new trial on the ground that the verdict was against the evidence, the .court refused to entertain it, for the reason that one new trial had theretofore been granted plaintiff on the same ground. And upon this state of facts, it was said ‘'one new trial having been granted to a party, no matter for what reason, the power to award that party other new trials is exhausted, except for some of the. causes before mentioned,” i. e., for prejudicial errors committed by the court, when the triers of fact have erred in a matter of law; or when the jury shall be guilty of misbehavior.
We submit that what was said in the language quoted was not necessary to a decision of that case, and is in conflict with the plain letter and meaning of section 2241,. Revised Statutes, 1889, which provides that, “only one new trial shall be allowed to either party, except: First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior.” When the statute says “only one new trial shall be allowed to either party, except,” it clearly means that one new trial may be granted to either party, for any cause, except such as come within the first and second exceptions of.
Free access — add to your briefcase to read the full text and ask questions with AI
Burgess, J.
The plaintiff appealed from an order of court setting aside the verdict of a jury and grant[538]*538ing defendant a new trial. By the verdict plaintiff was awarded $5,000 for the death of his wife, Nellie I. Kreis, who was run over and kiíled by one of defendant’s cars at or near its depot at Webster. Groves, in St. Louis county, on the morning of April 19, 1891.
The deceased left her home in Webster Groves early in the morning to take the train by which she was killed, for the city of St. Louis. She lived in a northwesterly direction from the station and had her election to go on a plank walk extending some distance along the east side of defendant’s right of way near to the depot, or enter upon the railroad right of way, as she and other persons in the neighborhood had been •accustomed to do, and go down a path, which was between two railroad tracks running east and west. The evidence was conflicting as to whether she entered upon defendant’s right of way at what was called by the witnesses Murphy’s crossing or near to and east of the crossing. The distance from the station to this crossing is about twelve hundred feet.
Deceased had been a resident of Webster Groves for about eighteen months; had frequently taken passage on the train by which she lost her life; was familiar with the track and surroundings, and knew the time of the arrival of the train, which was about 9 A. M., but on the morning of the accident was a few minutes late. On that morning it was misting rain; Mrs.. Kreis had an umbrella over her right shoulder and a basket of eggs in her left hand. She did not see the train before it struck her.
The south track was used by trains en route to St. Louis and the north track for those going west. There was a switch or spur leaving the south track of the railroad about four hundred feet east of Murphy’s crossing, and it was near the head of this spur or switch that deceased approached near enough to the south [539]*539track to be struck by the beam or deadwood of the engine attached to a train which was proceeding eastward at a speed of about twenty miles per hour, or in front of it, and was killed.
The space between the two tracks was eight feet, five and one half inches, and she was on this space all the time until the moment of the collision, when she stepped close to the rail, between two ties, or in front of the train. She was never on the railroad track, if at all, until just at the instant that she was struck by the train. Those in charge of the train had an unobstructed view of her for near nine hundred feet before it collided with her, while their evidence was that they did not discover her perilous position in time to check the speed of the train, in time to prevent the accident. As is usual in such cases the evidence was conflicting as to whether any danger signals were given or not.
On a former trial of the cause a verdict in favor of plaintiff in the same amount, $5,000, was set aside on motion of defendant and a new trial granted on the ground that the court permitted the introduction of improper testimony, and gave improper instructions to the jury.
The right of the plaintiff to appeal from the order sustaining defendant’s motion and granting a new trial is not questioned, but it is insisted by plaintiff that the new trial was improvidently granted, because there was no error of law committed during the trial of the cause prejudicial to the defendant, and one new trial having been granted to it the court had no power to grant it another new trial because of the insufficiency of the evidence to support the verdict.
I. By section 2241, Revised Statutes, 1889, it is provided that “every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.”
[540]*540The ground upon which the order granting the new trial from which plaintiff appealed is not specified of record. While the court in sustaining the motion and granting the new trial rendered a written opinion giving his reasons therefor, it was not spread upon the record of the court, hut merely filed with the papers in the cause, which did not make it a part of the record. Hewitt v. Steele, 118 Mo. 463.
There were numerous causes assigned why a new trial should be granted as set forth in the motion, and if the action of the court in granting it can be sustained upon any one or more of the grounds assigned it is the duty of this court to do so. Hewitt v. Steele, supra; Bank v. Wood, 124 Mo. 72.
A careful examination of the evidence as disclosed by the record as well also as of the instructions given and refused, has satisfied us that there were but two grounds assigned in the motion upon which the action of the court can possibly be upheld: First, the insufficiency of the evidence; second, the refusal of the sixth instruction asked by defendant.
With respect of the first proposition, it is insisted by counsel for plaintiff that as one new trial had already been granted defendant, on the ground that the court permitted the introduction of improper testimony and gave improper instructions, the court had no power to grant defendant another new trial on the ground of the insufficiency of the evidence, and that its action in granting the second new trial can not be sustained upon that ground. McShane v. Sanderson, 108 Mo. 316, is relied upon as sustaining that contention.
While it may be conceded that that case seems to hold that where one verdict has been set aside and a new trial granted for any cause another new trial can not be granted to the same party on the ground that [541]*541the evidence is insufficient to support the verdict, or that the verdict in the. result of bias, it must be considered with respect to the facts upon which it was decided, and when this is done we submit that what was said with respect to the matter now under consideration was not necessary to a decision of that case.
In that case one new trial had been granted plaintiff on the ground that the verdict was against the weight of the evidence. Another trial was had resulting in a verdict in favor of the plaintiff as did the former trial, and, on motion being filed by plaintiff for a second new trial on the ground that the verdict was against the evidence, the .court refused to entertain it, for the reason that one new trial had theretofore been granted plaintiff on the same ground. And upon this state of facts, it was said ‘'one new trial having been granted to a party, no matter for what reason, the power to award that party other new trials is exhausted, except for some of the. causes before mentioned,” i. e., for prejudicial errors committed by the court, when the triers of fact have erred in a matter of law; or when the jury shall be guilty of misbehavior.
We submit that what was said in the language quoted was not necessary to a decision of that case, and is in conflict with the plain letter and meaning of section 2241,. Revised Statutes, 1889, which provides that, “only one new trial shall be allowed to either party, except: First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior.” When the statute says “only one new trial shall be allowed to either party, except,” it clearly means that one new trial may be granted to either party, for any cause, except such as come within the first and second exceptions of. that section, and the section next preceding it; and that one new trial may be granted to either party on the [542]*542ground of the insufficiency of the evidence to support the verdict, although there may have been- other new trials granted the same party for other causes.
The McShane case, although followed, was disapproved by two of the judges of the St. Louis court of appeals in the recent case of O’Neil v. Young, 58 Mo. App. 628, and is criticised by Rombatjer, P. J., in a separate opinion as follows: “That case seems to hold that the power of the court to grant even one new trial on the ground that the verdict is opposed to the weight of the evidence, or the result of bias, depends upon the fact whether the verdict is the first or second verdict in the case. If it is the first verdict, the court may grant a new trial; but, if it is the second verdict, the court is powerless to do so, even though the first verdict was obtained in disregard of all law, or for the .grossest misbehavior of the jury, and hence in contemplation of law was no legal verdict at all, if properly challenged. This distinction, which makes the discretionary power of the court dependent upon the mathematical position of its errors, strikes me as logically unsound. Statutes should receive a rational construction, if they admit of it. Why should a verdict, which is utterly untenable when properly challenged, be counted if it is the first verdict in the case, and yet not be counted when it is the second verdict? Why should the discretionary power of the court to grant one new trial on the ground that the verdict is opposed to the weight of the evidence be abrogated, simply because the jury were misdirected by the court on a former trial? A literal reading of the statute, it seems to me, calls for no such construction.”
State ex rel. v. Horner, 86 Mo. 71, was a proceeding by mandamus to compel the judge of the circuit court to enter up judgment on a verdict rendered in the court of which he was judge. A former verdict in [543]*543the same cause had been set aside on the ground that erroneous instructions had been given. A verdict was rendered on the second trial for $3,500 which defendants moved to set aside on the ground that the verdict was against the evidence, being excessive. In passing upon the statute now under consideration the court said: “"We are of the opinion that this statute puts no limit to the number of new trials a circuit judge may grant either party when the new trials are granted on account of errors committed by him in giving or refusing instructions, or in admitting or rejecting evidence. Nor does it put any limit upon the number of new trials he may grant when the jury err, either in a matter of law, or where ¿'hey are guilty of misbehavior. # #
“It is clear, we think, that the said statute invoked by relators was only intended to interdict the granting of a second new trial to the same party only in a case where such party has had one new trial granted to him on other grounds than error committed by the court in the progress of the trial, or on other grounds than that the jury erred in a matter of law, or had been guilty of misbehavior. In speaking of said statute, it was observed by-Judge Scott, in the case of Boyce v. Smith, 16 Mo. 317, that fin specifying the causes for which a second new trial could only be granted to a party, the statute proceeds upon the supposition that the law has been correctly expounded to the jury, and the statute only applies to those cases in which this has been done.’ If said statute only applies to those cases in which the law has been properly expounded to the jury, it conclusively follows that it can not be applied to the first new trial granted defendant in 1877, because the demurrer to respondent’s return admits the fact therein stated that such new trial was granted on the sole ground that the law was not properly expounded by [544]*544the court to the jury. And from this it also necessarily follows that defendants have never had a new trial granted them within the meaning of the said statute, and that the new trial which respondent proposes to grant defendants on the ground that the damages awarded by the jury in the second verdict were excessive, would be, in contemplation of said statute, the first new trial granted them.”
So in McFarland v. Accident Ass’n, 124 Mo. 222, Macfarlane, J., in speaking for the court, said: “We are asked to reverse the judgment on the ground that the verdict was against the weight of the evidence on the question of giving the notice of the death, and whether the death was the result of the accident. It must be admitted that the evidence in support of each of these issues was very unsatisfactory, but it can not be said that there was no substantial evidence at all in proof of these facts. In such ease the question is one for the determination of the trial court and this court will not ordinarily interfere. Besides, it appears that one verdict was set aside by the court for this reason, and its power to grant a new trial upon the same ground was thereby, under the express provision of the statute, exhausted, and its refusal to do so is not reviewable by this court.”
Our conclusion is that a proper construction of the statute gives the trial court the right to grant to either party one new trial on the ground of the insufficiency of the evidence to support the verdict of the jury, regardless of the number of new trials that may have been granted to such party upon other grounds.
II. The conduct of Mrs. Kreis in walking along so near the track of defendant’s road with an umbrella over her head, and so near the track as to be in danger of being struck by a passing train which-she knew was then past due, was negligence; but defendant’s ser[545]*545vants and employees in charge of the train knew that pedestrians in that vicinity were in the habit of walking along between its tracks at that point,.and if they either saw, or might have seen, by the exercise of ordinary care and watchfulness, her perilous position in time to have checked the speed of the train, or if they failed to use all necessary means at their command after they saw her perilous position to prevent the accident, consistent with their duty to. defendant and the safety of the passengers and the property of the railway company, and failed to do so, and because of such want of such care and watchfulness the train collided with and killed her, the defendant should be held liable. In regard to these matters, as well also as to whether or not Mrs. Kreis undertook to cross the track immediately in front of the approaching, train which caused her death, the evidence was conflicting and was properly for the consideration of the jury. Barry v. Railroad, 98 Mo. 62; Weber v. Cable Railway Co., 100 Mo. 195; Roddy v. Railroad, 104 Mo. 250; Gratiot v. Railroad, 116 Mo. 452.
The evidence did not show such negligence on the part of Mrs. Kreis as would have justified the court in taking the case from the jury. If she undertook to cross the track immediately in front of the approaching train and was killed she was guilty of contributory negligence, and the case would come within the rule announced in Yancey v. Railroad, 93 Mo. 433, and Maxey v. Railroad, 113 Mo. 1, and preclude plaintiff’s recovery; but that she did so is denied by plaintiff.
In a recent case in this court, Bank v. Wood, 124 Mo. 76, MacFarlane, J., in speaking for the court, says:
“When there is a substantial conflict in the evidence we should no more interfere with the action of the circuit court in granting a new trial than we should, [546]*546in such case, interfere with the verdict which has been approved by that court.
As the instructions presented the case very fairly to the jury, and covered every feature of it as disclosed by the record, it follows that the motion for a new trial must have been sustained upon the ground of the insufficiency of the evidence to support the verdict; and in sustaining the motion and granting a new trial upon that ground we are not prepared to say that the court abused its discretion. The judgment is affirmed.
Brace, C. J., Macfarlane and Robinson, JJ., concur. Sherwood, J., concurs in the first paragraph of the opinion, but thinks the plaintiff not entitled to recover under the evidence. Barclay and Gantt, JJ., dissent.