Burt Et Ux. v. Shreveport Ry. Co

• Decision Date: 29 October 1917
• Docket Number: 22425
• Citation: 76 So. 723,142 La. 308
• Court: Louisiana Supreme Court
• Parties: BURT et ux. v. SHREVEPORT RY. CO

76 So. 723

142 La. 308

BURT et ux. v. SHREVEPORT RY. CO

No. 22425

Supreme Court of Louisiana

October 29, 1917

SYLLABUS

(Syllabus by the Court.)

It is as much the duty of a trial court as of this court to see that justice is done between the litigants before it, and if in a case tried before a jury, the judge believes that the verdict is unauthorized and unjust, he should grant a new trial; the fact that such course may involve additional expense being an insufficient reason for his making a verdict, which, in his opinion, is not supported by the law and the evidence and will operate an injustice, the judgment of his court.

Under our system the right of recovery in an action in damages for personal injury, sustained through the fault of another, is limited to actual and compensatory damages affording adequate indemnity for such injury, and does not extend to punitive damages.

Where the amount allowed by the verdict of a jury and judgment of the trial court, in an action in damages for personal injuries, is found on the appeal to be excessive, it will be reduced by this court.

Wise, Randolph, Rendall & Freyer, of Shreveport, for appellant.

Foster, Looney & Wilkinson, of Shreveport, for appellees.

Statement of the Case.

OPINION

MONROE, C. J.

Plaintiffs, who are husband and wife, were riding, as passengers, in a public vehicle, known as a 'jitney bus,' on Marshall street in Shreveport, going north, at a point between fourth and third streets, when the bus was overtaken by one of defendant's street cars which knocked it down an embankment, about 20 feet high (measured on the slope), and overturned it under a negro cabin, which stood on stilts at the foot of the embankment. They sustained injuries for which they brought separate actions in damages, which actions were consolidated, for the purposes of the trial in the district court, and resulted in verdicts awarding the husband $ 6,000 and the wife $ 5,000. Defendant has appealed and plaintiffs have answered, praying that the awards be increased. The appeals have been brought up in one transcript and consolidated, for the purposes of the argument and decision, and will be disposed of in one judgment.

It appears from the evidence that the bus had been traveling for several squares with the two wheels on the left side upon the railway and the other two wheels on the roadway; that it was moving at the rate of 12 or 15 miles an hour, carrying nine passengers who occupied seats running lengthwise and capable of accommodating 16; that the car came behind it at the rate of not less than 25 miles an hour, on a down grade, and that the motorman saw the bus, from 180 to 300 feet in front of him, though he testifies that it was then entirely on the roadway and that it 'cut in' on the track about 30 feet in front of him. His testimony, is, however, overborne by that of other witnesses. It also appears that the motorman sounded no whistle or bell until the car was so close to the bus that the crash of the collision followed 'almost immediately' (to quote the language of several of the witnesses). The bus being overturned pinned several of the passengers including plaintiffs, underneath it, so that it required some effort to get them out. Plaintiffs went at once to a sanatorium where they remained and received treatment for three days, after which they went home, where the treatment was continued. Within two weeks, Mr. Burt was able to be on the street, but was compelled to use a crutch because of injury to his left knee (and was still using it at the time of the trial). At the end of that time he returned to the bank in which he was employed as bookkeeper, but, not being able to stand while at his work, was assigned to some other position, the duties of which he could discharge while seated. Shortly before the trial, which took place about three months after the accident, he resumed his functions as bookkeeper, though he testified that he was not altogether sure that his left leg, the knee of which was still somewhat swollen and had an excess of fluid under the cap, would permit him to hold it. About four weeks prior to the accident Mrs. Burt had been operated on for appendicitis, and had been up for about two weeks when the accident occurred. The operation was performed by Dr. Abramson, assisted by Dr. Sanderson, and those surgeons treated plaintiffs during their stay in the sanatorium after the accident; Dr. Sanderson attending more particularly to Mrs. Burt and Dr. Abramson to Mr. Burt. When they returned home, Dr. Sanderson alone visited them, save, perhaps, upon certain special occasions when other surgeons were called in, for the purposes, as we understand, of this case, and made single examinations, or, at most, two or three.

The plaintiffs had been married a few months prior to the accident, and, prior to their marriage in May, preceding the 16th of September when the accident occurred, Mrs. Burt officiated for about 15 months as a trained nurse in the same sanatorium, under the direction of the same Dr. Abramson, who was therefore fairly well acquainted with her. Dr. Sanderson gives the following testimony and prognostic concerning the injuries received by Mr. Burt, to wit:

'I recall, by looking at and referring to these notes which I made myself, that he had a laceration of the left jaw; laceration of the middle finger of the left hand; brush burn of right shoulder; brush burn of right elbow; laceration of right knee; brush burn of right ankle, laceration of left knee, and numerous abrasions of lesser consequence; and I make further note that he was complaining of trouble with his back and his left knee and that his spine gave him pain. * * * A. Yes, sir; I would say that it was severe. Q. Doctor, I will ask you, from your examination at the time and from your examination since, whether it is probable that he will regain the full and normal use of that [left] knee, or whether the probabilities are that he will have a limp, or a rigid or stiff knee? A. Well, I don't think that the leg will be rigid or stiff, but I do think that it will be permanently weakened and painful. There will probably be some lack of motion, the same that he has now, and there will be times that it will be a great deal better than it is now and, at times, a great deal worse.'

As to the injuries received by Mrs. Burt, and their possible consequences, the same surgeon gives the following testimony:

'She was greatly shocked and nervous, with a history of having been unconscious, following the accident. Her head presented numerous small punctures, wounds presumably due to her hair pins having been driven into the scalp; the right elbow and back of her hand were lacerated; the left arm showed severe contusion between the elbow and the shoulder -- and I then made a note that she was highly nervous and complaining of general pain; both things were marked by bruises in front -- and I have another note here about a condition that was aggravated -- an operation had been performed before that -- an abdominal operation. * * * It showed red. * * * The red that followed the shaking up has disappeared, but the scar has broadened to about four times what it was before. * * * She was practically hysterical for some weeks after the injury, and she had periods of crying and fear, and just what we consider neurasthenia. * * * Her back seems weakened; after standing, her back hurts and she has to lie down a great deal. * * * She has improved some since the time she was injured, and she will probably improve some more, but I do not think that she will ever be as healthy as she would have been without the injury. * * * I do not think so' [that her nervous system or condition will ever return to the normal condition].

Another surgeon corroborates the testimony thus quoted; does not think that Mr. Burt will be permanently lame, but is of opinion that the knee will probably, at times, give him trouble during the balance of his life; says that Mrs. Burt's condition is considered serious on account of its chronic condition; that, if a person in such condition ever returns to the normal, it takes years and depends upon her health and treatment, and that it is very hard to make a recovery save by special treatment, for a long time.

Dr. Abramson and two or three other surgeons testify that Mr. Burt's injury is not permanent, and one of them thought it was about time for him to have recovered entirely. Their attention does not appear to have been called to Mrs. Burt's neurasthenia, and they did not, themselves, observe it.

Mr. Burt testified to pains, more or less, at the time of the trial, and Mrs. Burt testified that she suffered severely from soreness, during the two weeks following the accident, and was still suffering from pain, or weakness, in her back. The surgeons seemed, however, to be of opinion that both plaintiffs were in a fair way to recover, if they had not already done so, from all their injuries, save, as has been stated, with regard to Mr. Burt's knee and Mrs. Burt's neurasthenia. Mr. Burt was 27 and Mrs. Burt 22 years of age at the time of the trial. The verdicts contain the following specifications, to wit:

In the case of Mr. Burt:

'Actual damages, $ 4,395; pain and suffering, $ 1,000; physician and surgeon's fees, $ 85; punitive damages, $ 500; total, $ 6,000.'

In the case of Mrs. Burt:

'Actual damages, $ 3,500; pain and suffering, $ 1,000; punitive damages, $ 500; total, $ 5,000.'

A motion for new trial was overruled, and the appeal was taken.

Opinion.

In overruling the motion for new trial, the judge a quo handed down a written opinion from which we make the following excerpts:

'Defendant has filed a motion for new trial from an adverse verdict of a jury, especially...