Evens v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 14 March 1934
• Docket Number: No. 31505.,31505.
• Citation: 69 S.W.2d 929
• Parties: EVENS v. TERMINAL R. R. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

69 S.W.2d 929

EVENS v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 31505.

Supreme Court of Missouri, Division No. 1.

March 14, 1934.

Appeal from St. Louis Circuit Court, Fred J. Hoffmeister, Judge.

Action by John S. Evens against the Terminal Railroad Association of St. Louis, a corporation. Judgment for plaintiff, and defendant appeals.

Judgment affirmed upon condition of remittitur, and otherwise judgment reversed and remanded.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

C. O. Inman and R. J. Horsefield, both of St. Louis, for respondent.

FRANK, Presiding Judge.

Action to recover damages for personal injuries. Verdict for plaintiff for $25,000. The trial court caused the verdict to be reduced to $17,500, and judgment was rendered for that amount. Defendant appealed.

The sole contention on this appeal is that the verdict and judgment for $17,500 is yet excessive and should be reduced by requiring a further remittitur.

Plaintiff was in the employ of defendant as a switchman. While in the performance of his duties in defendant's yards in the city of St. Louis, his left foot was crushed, requiring amputation of the leg about eight inches below the knee. Plaintiff was injured on December 5, 1929. The cause was tried on May 12, 1931. The facts to be considered in determining whether or not the verdict is excessive are fairly stated by plaintiff in his brief as follows:

"Plaintiff testified that he suffered extreme pain as a result of the injury, and remained in the hospital from the date of the injury, December 5th, until December 23rd. After plaintiff returned home from the hospital he was able to get around occasionally with the use of crutches. At the time of the trial the end of the amputated stump was still sore; that ever since the accident it had become sore periodically; that where the flesh was sewed together the wound would open; that the artificial leg caused the stump to get sore; that the day before the trial he had used his leg and at night had to take it off, and that on the morning of the trial the leg was too sore to wear the limb. He began using the artificial limb in March of 1930.

"Plaintiff further testified that when he exercises during the day he has quite a cramping and drawing pain in the leg at night after going to bed; that it interferes with his sleep; that he had been unable to work at all since the accident and had earned no money; that his average monthly earnings were $200.00. At the time of the trial plaintiff was forty-two years of age. His life expectancy was twenty-six years.

"Alex Weiland, president of the Standard Artificial Limb Company of St. Louis who has been engaged in the artificial limb business since 1910, testified that the reasonable value of an artificial limb such as Evens was wearing is $175.00; that the average annual cost of the repair and maintenance of an artificial limb is from $25.00 to $30.00; that the legs are guaranteed for five years against inferior material or workmanship; that an artificial limb will last a man doing laboring work from three and one-half to four or probably five years, depending upon the kind and character of work and the care taken of the limb. In other words, a person doing laboring work must replace a leg every three to five years."

In support of the contention that the verdict is excessive, appellant cites Kinney v. Met. St. Ry. Co., 261 Mo. 97, 169 S. W. 23; Newcomb v. Railroad, 182 Mo. 687, 81 S. W. 1069; Brady v. Railroad, 206 Mo. 509, 102 S. W. 978, 987, 105 S. W. 1195; Miller v. Schaff (Mo. Sup.) 228 S. W. 488, 491; Neal v. Railways (Mo. Sup.) 229 S. W. 215; Fitzsimmons v. Railroad, 294 Mo. 551, 242 S. W. 915; Cole v. Railroad (Mo. Sup.) 61 S.W. (2d) 344.

In each of the cited cases the injury was a loss of a leg below the knee. In five of these cases, namely, the Kinney, Newcomb, Brady, Fitzsimmons, and Cole Cases, there was a verdict in favor of plaintiff in excess of $10,000, and in each case this court reduced the verdict to $10,000. In Miller v. Schaff a verdict of $17,000 was reduced to $12,000. In Neal v. Railways a verdict of $15,482 was reduced to $10,482.

There is not, and, in the nature of things, cannot be, a fixed standard for the measurement of damages resulting from personal injuries. Each...