Thomas v. Kansas City Elevated Railway Co.

SYLLABUS BY THE COURT. Practice, District Court — Demurrer to Evidence Improperly Sustained on a Motion for a New Trial. Where a demurrer to the evidence of the plaintiff has been overruled, and the trial proceeds to a verdict and judgment in favor of the plaintiff, the court may not, upon a motion of the defendant for a new trial, set aside the verdict and judgment, and then sustain the demurrer to the evidence upon the ground that it is insufficient and enter judgment against the plaintiff for costs, unless it appears that the deficiency in the evidence cannot be supplied by the plaintiff and that upon another trial he would be unable to make a prima facie case.

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. On March 25, 1905, J. W. Thomas commenced an action in the court of common pleas of Wyandotte county against the Kansas City Elevated Railway Company to recover damages sustained by him on account of injuries received while a passenger on such railway. On the trial, after the evidence for the plaintiff was introduced, the defendant demurred thereto, and the demurrer was overruled. The defendant then introduced its evidence, and the case was submitted to the jury. A verdict was returned by them in favor of the plaintiff and a judgment was entered thereon. A motion for a new trial was filed by the defendant, the hearing of which was postponed until the next term of the court, which was in May, 1906. At that term the motion was presented and decided. It contained the following grounds: “(1) Irregularity in the proceedings of the court, jury and prevailing party, by which the defendant was prevented from having a fair trial. “(2) Misconduct of the jury and prevailing party. “(3) Accident and surprise which ordinary prudence could not have guarded against. “(4) Excessive damages appearing to have been given under the influence of passion and prejudice. “(5) Error in the assessment of the amount of recovery being too large. “(6) The verdict is not sustained by sufficient evidence and is contrary to law. “(7) Newly discovered evidence material to said defendant which could not, with reasonable diligence, have been discovered and produced at the trial. “(8) Error of law occurring at the trial and excepted to at the time by said defendant Kansas City Elevated Railway Company.” The court in its journal entry entered findings which read: “That the verdict heretofore rendered in this action is not sustained by the evidence, and that the judgment rendered upon said verdict is contrary to law, and that said verdict and judgment are hereby expressly disapproved by the court. “And the court further finds that the defendant is entitled to a new trial.” The court’s judgment in part reads: “It is therefore considered, ordered and adjudged by the court that the verdict and judgment heretofore rendered in this action are hereby set aside, to which decision and judgment of the court the plaintiff duly excepts; and the court being fully satisfied that the evidence introduced by the plaintiff did not establish a cause of action in favor of the plaintiff and against the defendant, the Kansas City Elevated Railway Company, and that the demurrer to the plaintiff’s evidence filed by the defendant at the close of the plaintiff’s ■evidence should have been sustained, and the court being fully satisfied that the evidence introduced by the defendant in no wise supplied the deficiency in the evidence introduced by the plaintiff in support of his cause of action, and that the said demurrer should now be sustained instead of a new trial being granted, it is therefore by the court considered, ordered and adjudged that the defendant’s said demurrer to the plaintiff’s evidence be and the samé is hereby sustained, and that the plaintiff take nothing by this action; and he is hereby adjudged to pay the costs of this action accrued at the time of the filing of said demurrer, taxed at $78.45.” Plaintiff moved the court to set aside the judgment against him, which was denied. He brings the case here for review.