Hughes v. Schmidt

• Decision Date: 09 July 1930
• Docket Number: No. 28841.,28841.
• Citation: 30 S.W.2d 468
• Parties: ROLLIN H. HUGHES v. HERMAN SCHMIDT, Appellant.
• Court: Missouri Supreme Court

30 S.W.2d 468

ROLLIN H. HUGHES v. HERMAN SCHMIDT, Appellant.

No. 28841.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

AFFIRMED (upon condition).

John T. Sluggett, Jr., and E.P. and R.C. Brinkman for appellant.

The verdict is grossly excessive. Bamber v. United Rys. Co., 192 S.W. 953; Bowman v. Elec. Co., 213 S.W. 161; Hite v. Railroad Co., 225 S.W. 916; Kiefer v. City of St. Joseph, 243 S.W. 104; Dunsmore v. Hartman, 256 S.W. 1031; Hartman v. Fleming, 264 S.W. 873; Schleef v. Schoen, 270 S.W. 410; Bennison v. Davis, 280 S.W. 42; Speers v. Mo. Pac. Ry. Co., 282 S.W. 131; Hoffman v. Line Co., 296 S.W. 764; Powell v. Schofield, 15 S.W. (2d) 876.

Mark D. Eagleton, John F. Clancy and Hensley, Allen & Marsalek for respondent.

(1) The verdict is not excessive. (a) The evidence on this subject should be taken in its light most favorable to plaintiff. Manley v. Wells (Mo.), 292 S.W. 67; Busby v. Tel. Co. (Mo.), 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Deland v. Cameron, 112 Mo. App. 710; Tucker v. Kollias (Mo. App.), 16 S.W. (2d) 649. (b) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. Co. (Mo.), 227 S.W. 79; Maloney v. U. Rys. Co. (Mo.), 237 S.W. 516; Sacre v. Ry. Co. (Mo.), 261 S.W. 88. (c) the trial court, in supervising the amount of the verdict, exercises a discretionary power, which should not be reviewed on appeal except under the same conditions that obtain where other discretionary functions of the trial court are brought into question. Appeal & Error, 4 C.J. 830, 871-3; Goetz v. Ambs, 27 Mo. 34; Gurley v. Railroad, 104 Mo. 233; Laughlin v. Ry. Co., 275 Mo. 472. (d) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys. Co., supra; Grott v. Shoe Co., 2 S.W. (2d) 785. (e) The verdict is reasonable by comparison with verdicts upheld in similar cases. Skinner v. Davis, 312 Mo. 581; Stein v. Rainey, 315 Mo. 535; Messing v. Judge & Dolph, 18 S.W. (2d) 408; Johannes v. Laundry Co., 274 S.W. 377; Varley v. Taxicab Co., 240 S.W. 218; Mayne v. Rys. Co., 287 Mo. 235; Zumwalt v. C. & A. Railroad (Mo.), 266 S.W. 717.

ATWOOD, P.J.

This is an action for damages for personal injuries brought by Rollin H. Hughes against Herman Schmidt. From an adverse judgment for $19,500 defendant has appealed. The only point here urged by appellant is that the verdict was excessive. As to other phases of the case, it will be sufficient merely to outline the facts.

At the time he was injured respondent was employed by appellant as a carpenter in the construction of a lumber shed. While working on a scaffold, with the construction of which he had nothing to do, the staging or board upon which the men walked and worked moved from its position, thereby causing respondent to lose his balance and fall. The carpenter who built the scaffold testified that a sixteen-penny spike had been driven part way into this board, but that it was left a little too loose and eventually worked out, leaving the end of this board loose, so that it slipped off of the other board. Appellant did not controvert respondent's claim that the boards should have been fastened. The defense was that the boards were properly nailed, and that the board in question did not come loose or fall at the time of plaintiff's injury. As to the character and extent of respondent's injuries, we quote from the testimony of Dr. Joseph C. Peden, an X-ray specialist, whose qualifications were admitted by defendant. He said that he made X-ray pictures of plaintiff's pelvis and right hip on October 7, 1927, two or three weeks before the trial, and that they showed an old fracture involving the right hip and the socket into which the hip fitted. He further stated:

"The fracture involves this region in there and that is a — you can't trace the line, because it is a crushing fracture; there are many lines. The head of these bones — the head of the thigh hone, has been driven into the socket joint — pushed in considerably farther than is normal, and the socket itself — the whole thing which it faces, is crushed.

"Q. Now, can you by way of comparison with the opposite side there — take the left side, by the member on the right side, and show the line which normally appears and why that line is obliterated on this other side? A. The head of the bone is right on this main object in the socket of this white line; that sort of surrounds it. On this side, these relationships are all disturbed, due to the fracture lines that have entered through that line.

"Q. And when you say there has been a crushing fracture, does that word `crushing' indicate that the fracture is more than one fracture, or a multiple of fractures? A. Yes, sir.

"Q. There are a number of fractures, then, is that the idea? A. Yes, sir."

Dr. F.G. Pernaud, whose qualifications were also admitted by the defendant, made an examination of plaintiff a short time before the trial. He said:

"I found that he had a characteristic deformity, or old fracture of the head or neck of the right femur, and I mean by fracture, a complete breaking of the bone and not a crack. The right leg measures from the point of the crest of the hip bone to the bone of the ankle bone, thirty-five and a quarter inches. The left leg, same measurement, is thirty-six and a quarter inches, showing that the right leg is one inch shorter than the left leg. The circumference of the of the left leg four inches above the knee is sixteen and three-quarters inches, showing that the right leg at that point is two and three quarters inches smaller in circumference than the left. The circumference of the right thigh at the crotch is seventeen and one-quarter inches; the circumference of the left leg at the crotch is twenty and one-quarter inches, showing that the right leg at this point is three inches less in circumference than the left leg. The right knee crepitates, and I mean by that, when it moves it grates, indicating that there is a disturbance, or destruction of the smooth membranes and membranes of the bone. The right knee cap rides slightly on the outside of the joint. There is limitation of all movements, and I mean by that, movements are incomplete; all movements of the right hip are incomplete and not full in all directions — rotation forward and backward of the right hip. A thickness of the bony structure of the right hip joint. I mean by that, the head and neck of the right thigh bone can be felt; that is, there is an increased amount of bone in this area — in the right hip in the lateral measurement and is narrower as compared to the left."

He further stated that plaintiff was suffering from an old fracture of the head and neck of the femur, and also a crushing of the acetabulum, or the socket into which the head of the thigh bone fits; that the neck of the thigh bone or femur is the narrow portion that comes from the main shaft of bone and has a knob or head at the end, which fits into a socket in the thigh bone, this socket being about half the depth and about as round as a teacup; that a fracture at the point where the femur fits into this socket was more serious than at other points, because it involved the hip joint, which is one of the most important joints of the body; that ordinarily there was a thick, viscid substance or fluid, like the white of an egg, in the joint, which provided lubrication; that in plaintiff's case the normal line between the head of the femur and the inside of the socket had been obliterated, and at certain points of the bearing surface the bones came directly against each other, causing a grating or rubbing and producing pain; that plaintiff's injury was permanent, and was reasonably certain to continue to cause pain throughout his life; that in a condition of the kind from which plaintiff was suffering, the tendency was to develop different constitutional changes and other infections that represent acute conditions; that there was pain with every movement of the hip joint, and that this pain caused a decrease in the use of the leg, which resulted in muscular shrinkage and atrophy; that this atrophy was a permanent condition, because plaintiff never would be able to use his leg properly; that he did not think plaintiff could perform the ordinary duties of a carpenter; that he could probably sit down and work in front of a bench, but he could not perform scaffold work or high work; that he was positive the plaintiff could not do the routine work of a carpenter, to turn out an eight-hour-a-day job, six days a week, over any period of time at all; that he did not think there would be any improvement whatever in the condition of plaintiff's hip joint and leg.

Plaintiff testified in his own behalf that at the time of trial, October 27, 1927, he was 48 years of age. On August 11, 1926, when the accident occurred, he was in defendant's employ and had been working for defendant since July 1st of that year; that he was a carpenter by occupation, and was carning regularly $66 per week; that prior to the accident his health and bodily condition was perfect; that in the fall from the scaffold he was not rendered unconscious, but was dazed; that the men working with him came to pick him up and he was in such great pain that he asked the men to lay him down, but didn't knew whether they did so or not; that the next thing he remembered they were trying to get him into a motor car to take him home, but he was taken to a hospital in St. Louis, where he remained for ten weeks and three days, under the attention of defendant's physicians, Drs. Coffee and Lyttle; that he then...