Adkinson v. Baltimore
| Decision Date | 13 October 1914 |
| Docket Number | No. 2405.,2405. |
| Citation | 75 W.Va. 156 |
| Court | West Virginia Supreme Court |
| Parties | Adkinson v. Baltimore & Ohio Railroad Company. |
The declaration in the case is good and the demurrer was properly overruled, (p. 157).
The instructions to the jury given are good and substantially cover the case made by the pleadings and proofs, and there was no error in rejecting those refused, (p. 157).
In an action for personal injuries the amount of damages properly recoverable depends largely on whether the injuries are permanent or only temporary, and where on the trial of such an action the verdict for plaintiff is large and time enough has not elapsed so as to determine whether such injuries are in fact permanent, and the question of the permanency of the injuries is not very well developed by the evidence, and the evidence tends to show neglect by plaintiff of her injuries, retarding the healing processes, this court will not reverse the judgment of the trial court in awarding defendant a new trial, (p. 158).
Error to Circuit Court, Nicholas County.
Action by Virginia C. Adkinson against Baltimore & Ohio Railroad Company. A new trial was awarded, and plaintiff brings error.
Affirmed.
Craig & Wolverton, and Townsend d& Bock, for plaintiff in error.
A. N. Breckenridge and Mollohan, McClintic & Mathews, for defendant in error.
Miller, President:
This is an action brought February 23, 1912, to recover damages for alleged injuries sustained by plaintiff, on a dark night, November 4, 1911, by falling into an excavation on defendant's railway at a street crossing in the town of Richwood.
Plaintiff's injuries consisted in a simple fracture of the radius of the right forearm, two or three inches above the wrist, and bruises upon her hip and shoulder. The arm was set and the evidence of the surgeon showed a perfect union, and substantial reeoveiw from the bruises. Plaintiff was not confined to her bed as a result of her injuries, and the healing of her broken arm had so far progressed on November 27, 1911, twenty three days after the accident, that by the consent and advice of her doctor she went on a trip to Florida, where she remained until her return on March 18, 1912. She swrears she carried her arm in a sling for three months, and that it continued to hurt for two mouths, and on her return home from Florida, the arm and some of her fingers were somewhat swollen, and the doctor said her arm was not then in as good condition as he had expected to find it, though on the trial, in August, 1912, he gave it as his opinion that she would finally recover, and sustain no permanent injury. There is some evidence suggesting if not tending to show that plaintiff may have misused or neglected her arm while on her trip, which interfered with or retarded her recovery.
On the trial below, on defendant's motion, the verdict of the jury in favor of plaintiff for $5,000.00, was set aside and a new trial awarded, and the correctness of that ruling is challenged by writ of error in this court.
Numerous grounds of its motion were assigned by defendant in the court below; one, that the declaration was bad on demurrer. The declaration we think is good, and the demurrer was properly overruled. Another was that the court had erred in giving and refusing instructions. We have carefully examined these instructions. Those given for both parties, we think, fully covered the case presented by the pleadings and proofs; and those rejected either amounted to abstract propositions not applicable to the evidence, or were fully covered by others given, wherefore we perceive no error in the giving and refusing of instructions.
On the defense of contributory negligence relied on, we think the jury were justified from the evidence in determining that issue against defendant, and that their verdict should not have been disturbed on that ground.
While the record does not so show, counsel substantially agree, that the action of the court below in awarding defendant a new trial was based mainly on the ground...
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