Honeycutt v. Wabash R. Co., 47600

• Decision Date: 11 July 1960
• Docket Number: No. 47600,No. 2,47600,2
• Citation: 337 S.W.2d 50
• Parties: Roy HONEYCUTT, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 50

337 S.W.2d 50

Roy HONEYCUTT, Respondent, v. WABASH RAILROAD COMPANY, a Corporation, Appellant.

No. 47600.

Supreme Court of Missouri, Division No. 2.

July 11, 1960.

Ely & Voorhees, Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, St. Louis, for appellant John L. Davidson, Jr., St. Louis, of counsel.

Charles E. Gray, Gray & Jeans, St. Louis, for respondent.

ELMO B. HUNTER, Special Judge.

This is an appeal from a judgment for $20,000, the sole contention being that it is excessive by more than $7,500.

Respondent-plaintiff, Roy Honeycutt, on July 18, 1955, brought this action against appellant-defendant, Wabash Railroad Company, a corporation, under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., to recover damages for personal injuries sustained by him on November 10, 1954, when he was injured by the discharge of a rivet gun operated by air pressure, allegedly as a result of the negligence of defendant in providing plaintiff with a rivet gun which had an unprotected and overly snesitive trigger.

The case has an interesting history. It was first tried in the Circuit Court of the City of St. Louis on April 2, 1956. This trial resulted in a verdict for plaintiff for $11,500. The trial court ordered a remittitur of $7,000 and judgment was subsequently entered for plaintiff for $4,500 from which judgment defendant appealed to the St. Louis Court of Appeals. That court reversed the judgment outright. See, Honeycutt v. Wabash Railroad Co., Mo.App., 303 S.W.2d 153. Eventually, the case reached the United States Supreme Court which reversed the decision of the St. Louis Court of Appeals and returned the case to that court. See, Honeycutt v. Wabash Railroad Co., 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed. 2d 380. The St. Louis Court of Appeals in an additional hearing on the case held there was error in the damage instruction, and remanded the case to the circuit court for a new trial on the issue of damages alone. See, Honeycutt v. Wabash Railroad Co., Mo.App., 313 S.W.2d 214.

The second trial of this case in the Circuit Court of the City of St. Louis resulted on January 14, 1959, in a verdict in favor of plaintiff in the sum of $20,000. The trial court entered judgment accordingly. After an unavailing motion for new trial this appeal, with its sole question of excessiveness, was perfected.

In reviewing the jury's findings on a contention of excessiveness of the verdict it is the duty of the appellate court to consider the evidence of damages in the light most favorable to the plaintiff. In so doing we acknowledge that the amount of damages is primarily for the jury. It is that body which is charged with the function of finding, as a fact, what sum will fairly and reasonably compensate plaintiff for his injuries.

An appellate court properly may determine, as a matter of law, the maximum amount which the evidence will support. Admittedly, such question is not susceptible of determination by precise formula or with mathematical nicety. Consideration must be given to the nature and extent of the injuries and disabilities, diminished earning capacity, if any, changing economic factors and the compensation awarded and approved in cases of similar or fairly comparable injuries, if any. In making the latter comparison, we must in the process keep in mind that each case is to be carefully considered on its own facts and that both injuries and injured individuals are not susceptible of being treated as though exactly like some other, if individual justice is to be done in each separate case.

We proceed to set out the evidence concerning plaintiff's injuries viewed in a light most favorable to him.

On the morning of November 10, 1954, plaintiff, a thirty-five year old employee of defendant, while driving rivets under a railroad car, picked up his rivet gun which unexpectedly went off ejecting a metal snap which hit the side of the railroad car and bounced back hitting him a severe and cutting blow just above his left eye. The impact broke both his regular glasses and his safety glasses. Blood was running down the side of his face. His superior, Mr. Farris, took him to Dr. Withrow, defendant's company doctor at North Kansas City. Dr. Withrow sewed up the cut with two or four stitches and sent him home. The next day he returned to work but didn't do anything. Two days after the accident he returned to Dr. Withrow, and returned to the doctor again in two or three days. These visits were in the mornings before plaintiff went to work. Each time the doctor changed the bandage, looked at the cut and cleaned it off. Other than giving plaintiff prescription medicine for his headache this is all Dr. Withrow did for him. He told plaintiff that bufferin, aspirin or anacin would do about as good as the prescription tablets. The area around plaintiff's left eye remained swollen and black for about five days. It remained bloodshot for several months continuously.

Dr. Withrow then sent plaintiff to Dr. McCloud, the company doctor in Kansas City, who examined his eyes and gave him another pair of glasses. At that time his left eye was burning, swollen and bloodshot. His eye would get all bloodshot, pain would follow, and in about three or four hours after that pain it would start throbbing on the left side just like a toothache. Sometimes it would last eight hours. He would endeavor to 'sleep it off and maybe the next day it'd still be there.' His eye would be puffed up and bloodshot.

Two or three weeks after the accident Dr. Withrow sent him to Decatur, Illinois, to the hospital for examination, where he arrived on December 6, 1954, and was discharged on December 7, 1954. He was off work a full week for the Decatur trip. His left eye still burned, would be bloodshot and he couldn't read. If he started reading it would start burning, 'stuff' would come out of it, and the throbbing pains would commence. Prior to the accident he had never had any trouble reading or watching television. After the accident if he watched television in less than thirty minutes the burning and pain process would start. He couldn't read the newspaper--or glance through it without the eye burning and pain and headaches beginning.

The company eye doctor at Decatur looked at his eye and advised him that Dr. Withrow could do as much for him as the doctors at Decatur.

After returning to Kansas City from Decatur plaintiff went back to Dr. Withrow until April, 1955, during which time Dr. Withrow gave him aspirin, anacin or bufferin. Dr. Withrow said he didn't know what to do for him and told him, 'There's something up there causing your headaches but I don't know what it is. The only thing I can tell you is just take bufferins and aspirins.'

During all this time he continued to work daily. When he would go home at nights he would have the headaches and just lay around or go to bed after supper. He would have these headaches three to five times a week. Because of his headaches he gave up numerous activities such as playing ball with his boys. Scout work, running, much of the work around the house such as mowing the yard, and even playing pinochle with his wife and friends for that would start the burning process. Eventually, he moved to a smaller house and yard. He changed jobs in that with the aid of his seniority with defendant he bid in a truck job 'because there's a lot less stoopin' over and raisin' up.' His new job consisted primarily of driving a truck part of the time in order to get to where the particular car that needed repair was located and then to do carman work on the car. He continued to work some around dirt and cinders as his work requires that.

In April, 1955, his attorney sent him to Dr. Steegmann in Kansas City, who gave him some tablets for his headaches, but they made him so sleepy he didn't continue to take them. His attorney also sent him to another doctor for examination but he wasn't advised of its results.

On November 29, 1955, plaintiff returned to Dr. Steegmann for additional examination. On plaintiff's earlier visit to Dr. Steegmann on April 13, 1955, he had complained of his left eye and the region around it and of its throbbing pain and burning. Plaintiff had reported this as being relatively constant up to January, 1955, after which it became intermittent--lasting for most of one day or a shorter period and varying not only in duration but also in intensity. On the November 29th visit plaintiff complained he still had these throbbing headaches, after which the eye would become congested. Dr. Steegmann attributed the headaches which he deemed similar to migraine headaches to the blow on the head received in the accident. He noted the headaches and eye congestion had been aggravated by warm weather.

On December 5, 1955, plaintiff went to St. Louis where he was examined by Dr. Ernest H. Parsons. Plaintiff's complaints were of headaches, and pains in his left eye; that his eye burned and if he read it got bloodshot, together with a certain amount of increase in secretion in the left eye. His physical examination showed a well healed generally horizontal scar of slightly less than one inch in length just above the left eye and just beneath the eyebrow. His neurological examination related to the skin above the left eye and disclosed 'a loss of abnormality of sensation above the left eye, involving the left eyebrow. It demarcated exactly the part of the skin which is supplied by the nerve which comes out above the eyebrow and goes to the forehead, the anterior third of the scalp.' The area had a peculiar sensation to the patient and was abnormally decreased in sensation. It was marked out identically upon repeated testing with a wheel with pins on it, and there was a decrease in the skin temperature over this area observed by examination with a thermocouple. Also, there was an increase in the tearing of the left eye. It was watering quite markedly in contrast with the right eye. When Dr....