
    SARAH CORUM, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Kansas City Court of Appeals,
    February 17, 1908.
    1. TRIAL PRACTICE: Motion for New Trial: Matters in Issue. AVhere the record shows that at the hearing of the motion for new trial the only objection relied upon related to the weight of the evidence and the excessiveness of the verdict, all other matters are withdrawn from the court’s consideration.
    2. APPELLATE PRACTICE: A/Velght of Evidence: Trial Court. The weight of evidence is exclusively lor the determination of the trial court and the appellate court can only interfere when there is no substantial evidence to support the verdict.
    
      3. -: Excessive Verdict: Trial Court. Evidence reviewed and verdict is held not to he excessive, especially since it is the second substantial verdict which has received the approval of the trial court.
    Appeal from Jackson Circuit Court. — Hon. Hermann Brumback, Judge.
    Affirmed.
    
      John H. Jjuoas, Frank G. Johnson and Henry 8. Oonracl for appellant.
    (1) Plaintiff’s injuries are due to her own negligence and not to the negligence of the defendant, as appears from the overwhelming weight of the evidence. Friesz v. Fallon, 24 Mo. App. 439; ELickman v. Railroad, 47 M'o. App. 65; Walton v. Railroad, 40 Mo. App. 544; Weaver v. Railway, 60 Mo. App. 210. (2) The verdict is excessive. Stoetzel v. Swearingen, 90 Mo. App. 588; Haynes v. Trenton, 108 Mo. 123. (3) The court erred in giving plaintiff’s instruction on the measure of damages. (a) Undue prominence is given to the extent and character of plaintiff’s injuries. McAlister v. Irving*, 69 Mo. App. 442; Bowlin v. Creal, 63 Mo. 229; Chany v. Insurance Co., 62 Mo. App. 45; 9 Missouri Digest, page 15406, sec. 184. (b) The instruction is argumentative. Melican v. Elec. Co., 90 Mo. App. 595; Flannery v. Railway, 44 M'o. App. 396; Johnson v. Ruth, 34 Mo. App. 659. (4) The defendant’s motion for a new trial should have been sustained because the court erred in submitting the cause to the jury, and because the verdict of the jury is unmistakably the result of bias and is excessive. Stoetzel v. Swearingen, 90 Mo. App. 588; Haynes v. Trenton, 108 Mo. 123; Heite v. Railway, 130 Mo. 140; Foley v. Alkire, 52 Mo. 317; Spohn v. Railway, 87 Mo. 74; Hook v. Railway, 162 Mo. 569.
    
      E. D. Ellison and Rees Turpin for respondent.
    (1) The instruction complained of by appellant was really advantageous to it and follows a principle approved in a long line of authorities. Estes v. Shoe Co., 155 M'o. 577; Baker v. Publishing Co., 103 Mo. App. 54; Gordon v. Burris, 153 Mo. 223; Coleman v. Drane, 116 Mo. 387; Fleming v. Railway, 89 Mo. App. 129; Mitchell v. Plattsburg, 33 Mo. App. 555. (2) This court, the St. Louis Court of Appeals, and the Supreme Court of this State have repeatedly held that it is not within the province of an appellate court to disturb the verdict of a jury as being against the weight of the evidence when there is substantial evidence to support the verdict and the question presented is whether the witnesses of the plaintiff or the witnesses of the defendant are entitled to the greater credit. Rattan v. Electric Co., 129 Mo. App. 270; Fullerton v. Carpenter, 97 Mo. App. 197; State v. Woodward, 171 Mo. 593; Yeale v. Green, 105 Mo. App. 182; Hurley v. Railroad, 120 Mo. App. 262. (3) Appellants’ second and fourth points are both directed to the amount of the verdict. Appellant contends that the verdict is excessive. A much larger amount could have been properly allowed her as a just compensation for her injuries and for the pain she has suffered. Baker v. Independence, 93 M'o. App. 172; Milledge v. Kansas City, 100 Mo. App. 490; O’Neill v. Kansas City, 178 Mo. 91; Chilton v. St. Joseph, 143 Mo. 192.
   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.  