Birmingham Elec. Co. v. Thompson

• Citation: 37 So.2d 633,251 Ala. 465
• Decision Date: 14 October 1948
• Docket Number: 6 Div. 631.
• Parties: BIRMINGHAM ELECTRIC CO. v. THOMPSON.
• Court: Supreme Court of Alabama

37 So.2d 633

251 Ala. 465

BIRMINGHAM ELECTRIC CO. v. THOMPSON.

6 Div. 631.

Supreme Court of Alabama

October 14, 1948

Rehearing Denied Dec. 16, 1948.

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

Clifford Emond, of Birmingham, for appellee.

SIMPSON Justice.

The plaintiff, a passenger in an automobile driven by her companion, was injured in a collision with a bus of the defendant in the city of Birmingham.

The principal insistence of error is the refusal of the trial court to grant a new trial on the ground of the excessiveness of the verdict. The verdict returned was $20,000 and, in acting on the motion for a new trial, the court ordered the verdict reduced to $14,000 with a remittitur of the excess which was accepted by the plaintiff.

The court has given careful consideration to the entire evidence. We have reached the conclusion that a further reduction of the verdict would not be here authorized.

The evidence as regards the case of the plaintiff's injuries came from her own witnesses and was without dispute. Her head was propelled through the windshield of the automobile in which she was a passenger. She received facial injuries which from the testimony of the witnesses, were indicated to be rather serious and left scars. She received a permanent injury to her foot, which requires her to wear an orthopedic shoe, produces some visible deformity and gives her pain on locomotion and when she is required to be on it for any length of time. She was a young business woman, twenty-three years of age when the accident occurred and, by reason of her permanent impairment and deformity, is unable to participate in the usual recreations of young people, such as dancing and other sports which require such nature of activity. To remedy the impairment it appears from the testimony of the orthopedic surgeon that elaborate and expensive surgery would be necessary, with the prognosis thereof being extremely uncertain.

Regrettably, from the standpoint of an appellate court seeking to appraise the correctness of the amount of the judgment appealed from, we are not advantaged as the jury and the trial judge were in observing the objective symptoms, such as the scars on the plaintiff's face, the deformity of the foot, and the cosmetic aspect of such injuries. We cannot foretell what future pain or suffering, also an element to be considered (15 Am.Jur. 483, § 73), might recur. Nor is there any yardstick to measure the amount of recompense which should be awarded for pain or mental suffering.

We must, perforce, rely upon the good judgment of the trial court, an able jurist of long experience, who was so advantaged and who reduced the judgment to the amount stated. On this point we must be impressed with his conclusion and, indeed, it has weight on review, and a favorable presumption as to its correctness is indulged. Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545(18); Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830(6).

The same general principle, of course, applies as regards overturning the decision of the trial court in such a case as his refusal to grant a new trial. Unless after indulging all presumption in favor of the correctness of that ruling, the preponderance of the evidence against such a judgment is so decided as to clearly convince the court...