Dowd v. Westinghouse Air-Brake Co.

• Decision Date: 03 March 1896
• Citation: 34 S.W. 493,132 Mo. 579
• Parties: DOWD v. WESTINGHOUSE AIR-BRAKE CO.
• Court: Missouri Supreme Court

34 S.W. 493

132 Mo. 579

DOWD v. WESTINGHOUSE AIR-BRAKE CO.

Supreme Court of Missouri, Division No. 2.

March 3, 1896.

APPEAL — REVIEW — PERSONAL INJURIES — INADEQUATE DAMAGES.

1. In a personal action for damages a new trial will not be granted on the sole ground of the smallness of the damages awarded, unless the verdict appears to have been the result of passion or prejudice.

2. A verdict of $100 for the compound fracture of a leg is not so grossly inadequate as to warrant a new trial on the ground that the jury were influenced by passion or prejudice.

Error to St. Louis circuit court; Jacob Klein, Judge.

Action by Dominick Dowd against the Westinghouse Air-Brake Company. Plaintiff's motion to set aside a verdict in his favor and for a new trial being overruled, he brought error to the court of appeals (57 Mo. App. 219), which transferred the case to the supreme court. Affirmed.

Chas. T. Noland and Virgil Rule, for plaintiff in error. A. & J. F. Lee, for defendant in error.

BURGESS, J.

Plaintiff sued for $10,000 damages for injuries received by him while in the employ of defendant, caused by the falling of an embankment upon him while engaged in digging an excavation for said company. On a trial before a jury plaintiff recovered a verdict for $100, and, after moving to set the verdict aside and for a new trial, and the same being overruled, he sued out his writ of error to the St. Louis court of appeals. 57 Mo. App. 219. The case was certified by that court to this, because of the amount in controversy, $9,900, being in excess of its jurisdiction. At the time of the injury, plaintiff was about 25 years of age, and was employed as a laborer by defendant, and was engaged in making an excavation. One Jack Stellfax was defendant's foreman, and plaintiff was under his directions and control; and while acting in obedience to the order of said foreman plaintiff attempted to move some loose dirt which had fallen into the excavation, and while in a stooping position a large amount of earth caved in from the embankment near which he was working, and fell upon him, injuring his head, spine, and leg. Two bones of the left ankle were fractured, and it has since, up to the time of the trial, remained somewhat stiff. The evidence shows that the injuries are not permanent. The only ground urged for a reversal of the judgment is the inadequacy of the verdict, which plaintiff contends was the result of bias, prejudice, or passion. If this insistence be correct, the judgment should be reversed, and the cause remanded for a new trial, as in every trial by jury the parties are entitled to a jury composed of men free from bias or prejudice, otherwise jury trials would be but a mockery, and soon bring such...