English v. Thrower
| Decision Date | 31 December 1940 |
| Docket Number | No. 6195.,6195. |
| Citation | 146 S.W.2d 667 |
| Parties | ENGLISH v. THROWER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Stoddard County; J. V. Billings, Judge.
"Not to be published in State Reports".
Action by F. E. English against Mary Thrower for personal injuries and property damage alleged to have been sustained by plaintiff when defendant drove her automobile into the rear-end of plaintiff's wagon. From an unsatisfactory judgment, the plaintiff appeals.
Reversed and remanded, with directions.
Francis M. Kinder, of Poplar Bluff, for appellant.
Henson & Henson, of Poplar Bluff, for respondent.
This is an action in which plaintiff seeks to recover for personal injuries and property damage alleged to have been sustained by him on February 11, 1939, when defendant is alleged to have driven her automobile into the rear-end of plaintiff's wagon on State Highway No. 60, about three miles east of Poplar Bluff. The trial resulted in a verdict in favor of plaintiff for $100 property damage and $150 personal injuries, from which judgment plaintiff duly appealed to this court.
The petition is in conventional form. The answer consists of a general denial and a plea of contributory negligence, alleging plaintiff's failure to exhibit a reflector or light on the rear of the wagon, or a red flag on the end of the coupling pole.
The evidence shows that plaintiff had been to Poplar Bluff and was returning to his home, which was about one and a quarter miles from the scene of the accident. At the time, he was driving his team of mules hitched to a wagon with about one half of his wagon and the right-hand mule off the concrete slab and on the dirt shoulder. The defendant, traveling in the same direction, struck the wagon from the rear, practically destroyed it, killed one of the mules and badly injured the other one. The impact caused the plaintiff to be thrown to the pavement between the mules, inflicting numerous cuts, sprains and bruises, and a hernia appeared in his lower abdomen or groin.
Plaintiff testified that while being taken home on the night of the collision he had pains in his back and side and a big skinned place on his shin; that he thought the hurting in the groin was a kernel and would come out of it; that he went to Dr. Henrickson on February 15th, at which time the doctor told him what was the matter with his groin. Plaintiff further testified: "I had a big lump in my side about the size of a hen egg, just after the accident, I thought it was a kernel from the skinned shin and it later proved to be a hernia."
Dr. Henrickson testified:
On cross-examination the doctor testified as follows:
The defendant, in cross-examining plaintiff's witnesses, and in an effort to show that the hernia was not the result of the collision, showed that plaintiff loaded fifteen cross-ties on his wagon, alone, on the same day of the accident, but previous thereto — the ties weighing approximately 370 pounds each.
The evidence disclosed the wagon to be of the value of approximately $70, and the mules to be worth $200 each at the time of the collision; that plaintiff had to remain in a hospital for about one month, undergoing an operation for the hernia, and expend or agree to pay approximately $288 for operation, hospitalization and medical care. There was sharp conflict in the evidence as to the degree of darkness and as to the time of day when the accident occurred, and as to the length of the coupling pole; that plaintiff had no light or reflector on his wagon, or flag on his coupling pole was undisputed.
Plaintiff urges five assignments of error on this appeal. The first is as follows: "That the court erred in overruling plaintiff's motion for a new trial because the verdict of the jury and the judgment entered pursuant thereto are grossly inadequate under any testimony in the case, either for the plaintiff's property damage or his personal injuries and can be viewed in no other light than being the result of passion, prejudice or other miscarriage on the part of the jury."
Our courts have generally held that in actions for damages judgments would not be set aside on the sole ground of inadequacy, but this rule is subject to the exception that appellate courts...
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