Birmingham Elec. Co. v. Howard

Decision Date15 April 1948
Docket Number6 Div. 583.
Citation34 So.2d 830,250 Ala. 421
PartiesBIRMINGHAM ELECTRIC CO. v. HOWARD.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; Whit Windham Judge.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellant.

Francis H. Hare, of Birmingham, for appellee.

SIMPSON Justice.

The appeal is from a judgment in the amount of $1750 recovered by appellee in a tort action against appellant for personal injuries received while a passenger on one of appellant's street cars when it collided with a truck in downtown Birmingham.

The questions here are (1) whether the jury was authorized to include in its verdict an assessment for damages for probable permanent injuries and, if so, (2) was the verdict excessive? The first proposition was raised by defendant in the trial court by special, requested, written charges and the second by motion for a new trial. On a careful consideration of the evidence bearing on these two questions we have decided that both propositions must be resolved against the contention of the appellant. A short recitation of the substance of the proof of the catalogued injuries will serve to illustrate this conclusion.

The appellee suffered superficial knee and head injuries and a severely bruised and sprained back. Decision of the two questions revolves principally around the character and permanency of the back injury. Appellee was confined in the hospital for forty-eight hours and was treated by the company doctor for about six weeks. His knee injury bothered him to some extent for about a week or ten days, but his back injury caused him great pain for about six weeks. During the first nine days of this period his body was strapped with adhesive tape and blisters formed under the bandages, which also added to his misery. He also testified that about six months after the doctor dismissed him he suffered limitation of movement and pain on lifting heavy articles and that such occasional spasms in his back, which the doctor testified could be attributable to his original injury on the street car, had occurred several times in the last two and a half years. He was a truck farmer living at Bangor, Alabama, but after his injury sold his farm and came to Birmingham, and his wife testified that the reason for this change in occupation was because he could not do the labor incident to truck farming. From this evidence the jury could have inferred that the condition of the muscle spasms and pain in his back might still subsist and recur to give him further trouble. His actual expenses were $132.21.

To sustain the contention that the damages were excessive learned counsel for appellant seem to rely on certain of his answers to the interrogatories propounded to him about a year and a half after the accident and some time before the trial in which he said that he had suffered pain and discomfort from the back injury for a period of from six weeks to two months but that at the time he was answering the interrogratories, so far as he knew, he had recovered. On trial, however, to neutralize or explain these interrogatory answers, he testified that when he made the answers he had no great trouble with his back, but that since then he had on four or five occasions suffered the muscle spasms which he testified about. The company doctor who testified for appellant stated that he remembered the appellee particularly because he was probably hurt more than the average case he saw, that a strained back was a painful type of injury and that the pain and limitation of movement testified to by the appellant, if in fact it existed (the verity thereof being for the decision of the jury), was probably the result of the accident. The plaintiff's wife, a registered nurse, also testified that he suffered much pain and was in such condition that for a while he had to be assisted in arising from bed, that he could not do farm work resulting in his change in occupation, that he had sores on his body under the adhesive tape, and during the period since his recovery had from time to time, on lifting heavy articles, suffered a recurrence of this same back trouble.

It is quite evident that the jury could have inferred that appellee had...

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39 cases
  • Moore v. Mobile Infirmary Ass'n
    • United States
    • Alabama Supreme Court
    • September 27, 1991
    ...damages awarded for personal injuries are excessive depends on the facts of the particular case"); Birmingham Electric Co. v. Howard, 250 Ala. 421, 423, 34 So.2d 830, 831 (1948). Were it otherwise, interference would be palpably Viewed in this light, we can hardly countenance the Infirmary'......
  • Austin v. Tennessee Biscuit Co.
    • United States
    • Alabama Supreme Court
    • March 29, 1951
    ...the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise. Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830; Luquire Funeral Homes Ins. Co. v. Turner, 235 Ala. 305, 78 So. As before pointed out, the verdict of the jury was ......
  • Black Belt Wood Co., Inc. v. Sessions
    • United States
    • Alabama Supreme Court
    • October 3, 1986
    ...the jury's verdict is thereby strengthened (International Union, etc. v. Palmer, 267 Ala. 683, 104 So.2d 691; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830)." AFFIRMED. SHORES, ADAMS and STEAGALL, JJ., concur. MADDOX, J., concurs specially. ALMON, J., concurs in the result o......
  • W. S. Fowler Rental Equipment Co. v. Skipper
    • United States
    • Alabama Supreme Court
    • July 25, 1963
    ...the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise. Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830. We have also pointed out that when the presiding judge refuses to grant a new trial on the ground of the excessive......
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