Columbus Electric & Power Co. v. Downs

• Decision Date: 17 December 1925
• Docket Number: 4 Div. 220
• Citation: 214 Ala. 104,106 So. 593
• Parties: COLUMBUS ELECTRIC & POWER CO. v. DOWNS.
• Court: Alabama Supreme Court

106 So. 593

214 Ala. 104

COLUMBUS ELECTRIC & POWER CO. v. DOWNS.

4 Div. 220

Supreme Court of Alabama

December 17, 1925

Appeal from Circuit Court, Russell County; J.S. Williams, Judge.

Action for damages by Monroe Downs against the Columbus Electric &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

F.U Garrard, of Columbus, Ga., Denson & Denson, of Opelika, and J.J. Mayfield, of Montgomery, for appellant.

Roy L Smith, of Phenix, and Frank M. De Graffenried, of Seale, for appellee.

SAYRE J.

Defendant's street car ran off the track at a point where it turned a right-angled corner from one street into another in Phenix City in this state. Defendant's car, after it left the track, struck an automobile (Ford) which in turn struck plaintiff. The automobile was standing approximately in front of plaintiff's place of residence. The sidewalk was narrow, and neither it nor the street was paved, the one merging into the other without line of demarcation. Plaintiff was standing or walking on the sidewalk. He may have been walking two steps away from the front line of his front porch, as he testified, though his sister, testifying as a witness in his behalf, said that, being herself on the porch she had her arm about him. Plaintiff's action for damages resulted in verdict and judgment for $10,000. Defendant appeals.

The judgment might well be reversed on the sole ground that the great weight of the evidence, considered with reference to its intrinsic moral worth, goes to show that there was no causal connection between the accident complained of and the loss of plaintiff's right leg, which was amputated about 10 days later, that being the principal item of damage for which he contended, and so that his damages were grossly exaggerated in the jury's verdict, as the motion for a new trial alleged. It is very evident to our mind that plaintiff's leg was amputated on account of a varicose ulceration of long standing, incurable, and dangerous to life, causing a condition of the limb described by medical and lay witnesses as "rotten." The surgeon who performed the operation testified that it was done on his suggestion, and that the injuries received by plaintiff in the accident, described by him (the surgeon) as mere superficial scratches on his left leg, had nothing whatever to do with it--contributed nothing to the necessity for an amputation. Another surgeon had previously treated plaintiff and had advised the operation. These surgeons were of long practice and high standing in the community. Without going further into the details of this aspect of the case, we prefer to state one other consideration of equal weight and as well established in the evidence.

Plaintiff being in a bad way at best, was carried to a hospital immediately after the accident. On the first day of his stay there he had no medical attention--he seemed to think that he needed none. On the third day the surgeon who saw him directed his discharge. In the meantime he had entered into an agreement in writing by which, for the sum of $100 presently paid, he released defendant from all claim for damages on account of injuries received in the accident. Seven days later he returned to the hospital and submitted to the operation for amputation of his leg. We have stated the substance of the testimony of the surgeon as to the reason for that operation. Defendant pleaded the settlement in bar of plaintiff's action. Plaintiff replied by alleging, in effect, that...