Clifton v. Kansas City Southern Ry. Co.

• Decision Date: 28 February 1911
• Parties: CLIFTON v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

135 S.W. 40

232 Mo. 708

CLIFTON v. KANSAS CITY SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. DAMAGES (§ 130)—PERSONAL INJURY—MEASURE OF DAMAGES.

The plaintiff, a government mail clerk, was injured in a railroad collision. His injuries consisted of bruises on his head and ear and a broken arm. The bruises on his head healed, while the arm incapacitated him for work for about eight months, during which time he received full pay, and after that was put at different work at the same pay, in which position he had considerable writing to do. He could write with his arm, though it was weak; the motion being limited, and two fingers having lost their sensation. It appeared that one of the large muscles controlling the arm was injured, and that the shoulder was stiffened, and plaintiff testified that writing tired him, and that his injuries had made him nervous. The record showed that he had suffered some, but failed to show that he had expended or was liable for any expenses for medical services or medicines. Held, that an award of $11,800 damages was excessive and should be reduced to $6,000.

2. APPEAL AND ERROR (§ 1140)—AFFIRMANCE NOTWITHSTANDING ERROR — REMISSION OF PART OF VERDICT.

That a verdict for damages in a personal injury case is grossly excessive does not necessarily indicate passion or prejudice on the part of the jury, where there was no error in the rulings on testimony or the instructions or misconduct of the jury, and the case will be affirmed upon the condition that the plaintiff remit the excess.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Special Judge.

Action by Vernon Clifton against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition.

Cyrus Crane and Geo. J. Mersereau, for appellant. A. F. Smith, Boyle & Howell, and Guthrie, Gamble & Street, for respondent.

GRAVES, J.

Plaintiff, a railway mail clerk, was injured by a collision between two of defendant's trains. He sued for damages in the sum of $12,000, and recovered judgment for $11.800. From this judgment defendant has appealed, and thus his troubles reach this court. Whilst the answer is a general denial, yet the defendant made no contention nisi as to nonliability, but directed the force of its efforts toward the measure of damages. The case here is therefore: (1) That the verdict is excessive; and (2) that the verdict is so excessive as to bespeak passion and prejudice upon the part of the jury, when certain alleged misconduct of the jury is considered. These contentions require somewhat in detail the facts as to the injury as well as other pertinent facts bearing upon the question of damages.

Plaintiff was about 25 years of age and earning $900 per year. In the collision he was thrown against the mail sack rack in the car, and his right arm was caught in the sliding door of the car, resulting in fractures of the bones near the elbow joint. There were bruises upon his head and ear which healed. He was rendered unconscious for some several hours. He was treated for some days by the physician of the defendant, Dr. Ayers, and upon his return to his home at Paola, Kan., had his arm manipulated by an osteopath to obviate, if possible, absolute stiffness of the limb. In about eight months after the accident, he resumed work for the government, at the same wages, but not on the road. He was given work at the depot at Kansas City, and his new duties were to check both in and out the mail sacks. In so doing he had to do more or less writing, which he did. He worked at this for eight hours per day. In two fingers on the right hand he seems to have lost sensation. The medical testimony shows that the motion in the elbow is limited by reason of bony growth occasioned by the process of healing. These growths or knobs prevented the full use of the joint. Owing to the injury to one of the large muscles, there was impaired motion in the shoulder joint. There was evidence of some soreness in the region of the fourth or fifth ribs. The strongest testimony on this injury to the arm is that of Dr. Foster, and is: "I examined him the 6th of February, 1906, and I found that the arm was very much—greatly limited in its motion. He could not bend it to any degree, and he could not straighten it out entirely. I found there was some deformity on the outer side of the elbow, which undoubtedly prevented the true movement of the arm. There must have been a bone misplaced. Of course, that is a long time after the fracture became confirmed, and we attempted to bend it up. There was a sudden stop I saw, not as of any muscular or tendinous resistance, but it was an abrupt resistance, a stoppage of the bending. I found that there were scars on his elbow where an injury had been inflicted. I found also that the shoulder joint was very much limited in motion, could not raise it up, and I could not raise it any higher than this. Could not get it up above his head, like that. Then there was a deep indentation of the large muscle of the chest that runs over and supplies that arm, helps in drawing the arm over in this way (indicating), and also in raising your body up. That muscle had been severed to a very great extent, if not altogether, right near its insertion into the arm. I found that there was imperfect motion of the fingers. He did not have very much of a grip. He could not clasp anything strongly, and all the motions and uses of that arm are very badly interfered with." Plaintiff himself complains of being nervous. He says that when he sees something about to happen he becomes nervous. He illustrated by saying that if he sees a truck handle about to fall to the floor it makes him...