Harper v. Railroad. will toward the plaintiff or are in any way interested in the outcome of this lawsuit. Some of them do admit that they were paid their expenses and three dollars a day for their time in coming to court as witnesses for the defendant. John Johnson testified that he resides at Blytheville and knows plaintiff; that he was seated in the smoking car of the train in question and that plaintiff while in there acted like a man that was drinking; that he heard plaintiff cursing the news agents; that there were two news agents on the train; that he saw plaintiff come into the smoking car following the news agent and heard him make remarks about the train crew stealing and call the news agent vile names; that he saw the brakeman separate them and that the brakeman took no part whatever in the fight; that when plaintiff started to raise up after the fight the brakeman did push him back in his seat; that plaintiff lives about a block from him in Blytheville; that he has observed plaintiff and that plaintiff did not carry his arm in a sling or in his bosom until the witness saw him at the other term of court, when plaintiff claimed he was "crippled up;" that he has seen plaintiff setting out shade trees and digging the holes with both hands at Doctor London's home and that this was between July at the time of the trial and February or March preceding. C. Litton, who lives at Marked Tree, Ark., saw plaintiff board the northbound train at Luxora, August 11, 1912. He testified that plaintiff was drinking at the time and that "he had been drinking all morning and pretty well all night before;" that he knows plaintiff as a man that gets drunk. C. E. Hurley testified that he lives at Blytheville; that he knew plaintiff from February 9, 1913, to June 20, 1913; that he lived close to plaintiff but never saw him carry his arm in a sling and that he saw plaintiff every day; that the first time he saw plaintiff carrying Harper v. Railroad. his arm that way was on the day of the trial; that he had seen plaintiff hoeing and planting beans in his garden and using both hands; that he talked to plaintiff over the garden fence where he was twenty or thirty feet from plaintiff and saw him using both hands in hoeing. Alf Mason who lives at Caruthersville saw plaintiff in April or May, 1913, setting out trees and testified that plaintiff was digging holes with a spade and using both hands. Robert Lee Fisher testified that he was on the train in the smoking car and saw plaintiff; that plaintiff had the appearance of being a drunk man; that he heard plaintiff cursing the news agents, calling them "sons-of-bitches," before he got into the fight; that he saw the fight and saw the brakeman separate them, pushing the news agent away and making plaintiff sit down; that the brakeman did not grab plaintiff by the arm and pull it over the seat; that he was only three or four seats away from the plaintiff; that he was right there looking on at the fight and he testified that the brakeman did not touch plaintiff's arm. Jeff Collier's deposition was introduced. He also saw the fight in the smoking car. He stated that plaintiff acted like he was intoxicated and that his conduct was very bad; that he was cursing and swearing and calling the news agents vile names; that he saw the trouble and that the brakeman did not pull plaintiff's arm around back of the seat. This was the case put to the jury-the evidence on which they returned a verdict for five thousand dollars actual damages against this defendant. The vital issue was whether or not the brakeman joined in the fight to injure plaintiff and pulled plaintiff's arm around the seat as described by the plaintiff, or was in good faith trying to stop the fight as it was his duty to do. It will be noted upon reading the 186MoApp20 Harper v. Railroad. foregoing summary of the evidence that on this point the plaintiff's testimony stands alone against that of the witnesses for the defendant, some of whom may be termed "interested," but some of whom are shown to have no interest in the case nor any ill-will toward the plaintiff. Plaintiff is not corroborated by his neighbors, the witnesses who had observed him since the fight with reference to the use of his arm. In no material respect is his description of his conduct on the train and of what took place corroborated in a single instance or circumstance. He differs with his witness, the barber, as to what the barber did, and he differs with his witness, Doctor Phipps, as to what the doctor did in his only treatment of plaintiff. We therefore have the plaintiff's testimony, which, standing alone, makes a case which should be submitted to the jury, but one which is uncorroborated in practically every particular and denied by all the eyewitnesses and those with whom he came in contact, not only as to what took place on the train but as to what occurred shortly afterward and on down to the day of the trial. It is indeed strange that plaintiff should go practically a whole year lacking only a few days, during all of which time his arm was paining him, useless, benumbed, crippled, and getting worse, without once consulting a physician for advice or treatment. According to his own testimony, the only time, after the day of the injury, that he consulted a physician was when he went to have his arm measured. As to this, plaintiff says the doctor found the difference in size in his two arms to be one-half inch, whereas the doctor says he found a difference of about one-eighth of an inch. Immediately after he was injured he procured the services of a physician, but from that day henceforth to the good day of judgment he never again sought the services of a doctor to attend his alleged injuries. It is impossible to understand how a fair and impartial body of men could arrive at the result this jury ד Harper v. Railroad. reached under the evidence had they followed the instructions of the court; and we can conceive of their action and attribute the reason therefor to nothing short of passion and prejudice. Although it is true that the decisions in this State hold that an excessive verdict is not necessarily the result of passion and prejudice, it is an evidence of passion and prejudice. We have a verdict returned by this jury which the trial judge refused to let stand, having required the plaintiff to remit three thousand dollars of it before the motion for new trial was overruled. This, to our minds, is some evidence that as to amount the trial court found they had acted with passion and prejudice. When a case is presented to a jury and the overwhelming weight of the evidence is against the finding of the jury and where the verdict itself bespeaks passion and prejudice, nothing short of a reversal of the judgment and a remanding of the case can meet the ends of justice. It is true that in the case of Cook v. Globe Printing Co., 227 Mo. 471, 127 S. W. 332, the Supreme Court required a remittitur of an enormous sum of money and still upheld the verdict; but upon reading that opinion it will be seen that in the beginning of the discussion of this question the court said there was no error in the instructions, no error in admitting evidence and no misconduct shown on the part of the jury, and, continuing-"that the publication, which is a basis of the action, was libelous, we think there can be no doubt whatever." (Italics are ours.) In that case, the court on viewing the evidence which was before it found that plaintiff had a cause of action on the merits, and, since it concluded therefrom that plaintiff was entitled to recover, could not attribute passion and prejudice to the jury in finding the very thing that the court itself would have found. There was left in that case only the question as to the amount to be given. Harper v. Railroad. Our attention has not been called to a single case in which the court would say that the overwhelming weight of the evidence is against the plaintiff's contention on the merits, where it said a remittitur was proper; because, in such a case, where there is evidence of passion and prejudice on the party of the jury, to-wit, in the amount of the verdict, the court cannot say that the same passion and prejudice did not contaminate the finding of liability. The law entitles litigants to a fair trial before an impartial jury; and where an appellate court comes to the conclusion that either the plaintiff or the defendant has not been accorded his rights in this respect, it is not only their privilege but their sworn duty to see that justice is sustained, and if necessary it must grant a new trial, even though the trial court failed in its duty so to do. A remittitur in such a case does not meet the requirements of fair dealing and justice. If the defendant in this case is not liable, then as great an injustice is perpetrated on it should the verdict be for one dollar in amount. The result of injustice may be lessened by the smaller verdict, but justice is not subject to either long or short division; the decimal point should be after the word and not between the letters. There is a long line of decisions in this State holding that where a proper administration of the law to the end that justice be done requires that a new trial be had, an appellate court will see that it is granted. [See, Spohn v. Railway Co., 87 Mo. 74; Baker v. Stonebraker's Admrs., 36 Mo. 345; Price v. Evans, 49 Mo. 396; Lehnick v. Street Ry. Co., 118 Mo. App. 611, 94 S. W. 996; Chitty v. Railway Co., 148 Mo. 64, 49 S. W. 868.] The closing lines of the opinion in the case of Garrett v. Greenwell, 92 Mo. 1. c. 125, 4 S. W. 441, are as follows: "Looking at all these things, it is a matter of profound surprise that the jury, with all this evidence before them, could have found as they did. But, inasmuch as they have done so, our duty, under |