Castleberry v. Morgan

• Decision Date: 01 February 1938
• Docket Number: 6 Div. 203
• Citation: 28 Ala.App. 70,178 So. 823
• Parties: CASTLEBERRY v. MORGAN.
• Court: Alabama Court of Appeals

178 So. 823

28 Ala.App. 70

CASTLEBERRY v. MORGAN.

6 Div. 203

Court of Appeals of Alabama

February 1, 1938

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

Action for damages for personal injuries by Mrs. W.A. Morgan against W.B. Castleberry. There was a verdict for plaintiff, and from a judgment granting plaintiff's motion for a new trial defendant appeals.

Reversed and remanded.

Murphy, Hanna, Woodall & Linbergh and Wm. H Ellis, all of Birmingham, for appellant.

C.W Greer and George Frey, both of Birmingham, for appellee.

SAMFORD Judge.

The action in this case was a claim for damages for simple negligence, growing out of a collision between a Ford truck, in which plaintiff was riding, and a touring car, being driven at the time by the defendant. The injury to the plaintiff was shown by the evidence to have been serious, and as a result of said injury she was confined in the hospital from the 29th day of August until the middle of October. Both arms were broken, one leg was broken above the ankle, and she was otherwise bruised and lacerated. She was taken to the hospital as a charity patient, and no charge was made for hospitalization and none for doctor's bill.

On the trial of the case, which was tried in conjunction with a suit by plaintiff's husband, both the plaintiff and her husband recovered judgment, the jury fixing the damages to the plaintiff at $750.

Deeming the amount inadequate, the plaintiff made a motion for a new trial which was granted by the court, and from this judgment the defendant takes this appeal.

In view of the fact that the verdict of the jury was in favor of the plaintiff, we pretermit a consideration of grounds 1 and 2 of the motion for a new trial, alleging that the verdict was contrary to the law and evidence.

It also appears, from a reading of this record, that there was no evidence of subsequent negligence, and, therefore, the court committed no error in giving at the request of the defendant, in writing, the following charge: "I charge you that the plaintiff can recover nothing because of any subsequent negligence in this case." This leaves for consideration other grounds of the motion, which, differing in verbiage, raise the question of inadequacy of the damages assessed by the jury, after a consideration of all the evidence.

The evidence for the plaintiff tended to prove negligence on the part of the defendant, and while in some particulars this evidence was weak and inconclusive, there was sufficient evidence to make this a jury question. On the other hand, the testimony for the defendant tended strongly to prove that the collision between the two cars was not due to the negligence of the defendant, but, on the contrary, was due to the negligence of the driver of the truck in which this plaintiff was riding at the time of the accident. In view of this state of the evidence, as shown by the record, it is very evident to us that the verdict of the jury responded more in sympathy toward the plaintiff than it did toward the defendant.

In Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998, L.R.A.1915F, 491, Ann.Cas.1916B, 449, De Graffenreid, Judge, quotes with approval from Moseley v. Jamison, 68 Miss. 336, 8 So. 744, as follows: "It may be conceded that where there is no standard for measuring damages, and no certain rule can be prescribed for the guidance of the jury, the court should not ordinarily grant a new trial, although the damages awarded by the jury appear to be manifestly too small. In such case of incertitude in the measure of damages, the matter must be left to the discretion of the jury, nor should its verdict be disturbed on its finding, *** except in those cases where it has been plainly produced by prejudice or passion or other improper motive." To the same conclusion is the case of National Surety Co. v. Mabry, 139 Ala. 217, 35 So. 698.

In Birmingham Electric Co. v. Ella Chandler, 177 So 646, 647, this court said: "The law has no fixed monetary standard for the assessment of damages for personal injuries. Each case must be governed by the facts and circumstances as...