Hurst v. Chicago, B. & Q. R. Co.

• Citation: 280 Mo. 566,219 S.W. 566
• Decision Date: 06 January 1920
• Docket Number: No. 20454.,20454.
• Court: United States State Supreme Court of Missouri
• Parties: HURST v. CHICAGO, B. & Q. R. Co.

219 S.W. 566

280 Mo. 566

HURST v. CHICAGO, B. & Q. R. Co.

No. 20454.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Rehearing Denied March 13, 1920.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by C. O. Hurst against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit in damages for personal injuries. The petition is in the usual form. The answer is a general denial. The verdict is for the plaintiff in the sum of $20,000. Defendant's motion for a new trial was overruled, but plaintiff was required to enter a remittitur in the sum of $5,000, which he did, and judgment was rendered for the sum of $15,000. From this judgment defendant appeals.

The facts are as follows: The plaintiff was in the employ of the defendant company as a conductor on a freight train. While so employed, the plaintiff observed that a brake on one of the freight cars was not working properly. Desiring to release the brake, plaintiff attempted to climb upon the car for that purpose. At the end of the car there were two devices called "grabirons," apparently intended to be used in climbing the car. Plaintiff stepped upon one of these, and it, being defective, gave way under his weight, and left him hanging by his right hand, with his feet swinging on the ties between the rails. After a few moments, plaintiff's hold gave way, and he fell. He was unable, in falling, to throw himself clear of the moving train, and his left foot was ground beneath the car wheels, necessitating amputation about midway between the knee and the ankle. He was taken to a hospital at Chillicothe, and was confined there, under the constant care of physicians and a nurse, for three weeks. After leaving the hospital, the wound was treated daily by the physician for several weeks. The ground upon which plaintiff fell, in falling from the car, was frozen, and in addition to the injuries to his leg he claims to have sustained a permanent injury to his back, from which he suffers intense, though intermittent, pain. He also sustained various minor cuts and bruises upon his head and body. The wound caused by the amputation had not completely healed at the time of the trial, and plaintiff still suffered from it, and being a large and heavy man, was unable successfully to use an artificial limb. The injuries were received on the 24th day of February, 1916, and plaintiff was still using crutches when the case was tried in. March, 1917. At the time of the trial he was employed about a garage, at a wage of $20 per month. At the time he was injured, plaintiff was 39 years of age, in good health, weighed 210 pounds, and was earning $145 to $150 per month. He had never worked at any other occupation. No other facts are necessary to an understanding of the questions arising on this appeal.

H. J. Nelson, M. G. Roberts, and E. M. Spencer, all of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

WILLIAMSON, J. (after stating the facts as above).

The first point assigned by appellant as error is the action of the trial court in giving the following instruction in behalf of respondent:

"If the jury find for the plaintiff and further find from the evidence that plaintiff was not, himself, guilty of any negligence or carelessness contributing to or causing his injury, they will assess his damages at such sum as they may believe from the evidence will reasonably compensate him for the injuries sustained by him, if any, as shown by the evidence; and in estimating such damages the jury may take into consideration the physical injuries to plaintiff, if any, as shown by the evidence, their nature and extent, and whether temporary or permanent, as shown by the evidence, the mental and physical pain and suffering the plaintiff has endured, if any, and will reasonably be expected to endure in the future, if any, as shown by the evidence, together with all the facts and circumstances detailed in evidence."

This instruction is claimed by appellant to be erroneous because it contains the words, "together with all the facts and circumstances detailed in evidence." The vice of the instruction is said to be that it gives the jury a roving commission, and is therefore improper, misleading, and prejudicial.

A similar instruction, in which the same thought was expressed in the following words: "In connection with all the facts and circumstances in evidence"—was given in the case of Salmons v. St. Joseph & Grand Island Railway Co., 271 Mo. 395, 197 S. W. 35, and was there held not to be error. Substantially the same instruction was also given, and held not to be erroneous in the following cases, to wit: Phelps v. Zinc Co., 218 Mo. 572, loc. cit. 584, 117 S. W. 705; Harmon v. Donohoe, 153 Mo. 263, loc. cit. 271, 54 S. W. 453; McNamara v. St. Louis Transit Co., 106 Mo. App. 349, loc. cit. 406, 80 S. W. 303. The reasoning of these cases need not be repeated here. We rule this point against appellant.

Appellant's second assignment of error is that the amount of the verdict, even after being modified by the court, is excessive. The amount of the verdict, it will be recalled, was $20,000, which the court reduced to $15,000, and rendered judgment for that sum. This court has always exercised the power, on what it deemed proper occasions, to reverse judgments because of excessiveness, or to require a remittitur as a condition of affirmance. The difficulty, however, is to determine the circumstances which render the use of that power appropriate. There is in this case no complaint in this court of any improper argument on the part of counsel for the prevailing party, nor any suggestion, unless it be in the amount of the verdict itself, of passion or prejudice on the part of the jury. The bald question presented for our decision is whether or not the verdict of the jury, even after having been abated by the trial court, is still so excessive that we ought not to allow it to stand.

In determining this question, we should not overlook the fact that 12 men, presumably honest and intelligent, sitting as jurors, awarded the respondent $20,000. The trial judge, while considering that amount excessive, nevertheless approved the verdict to the extent of $15,000. It must be admitted that our opportunity to judge of this matter is not so good as that of the jury and the court below. However, when we look into similar cases upon which this court has passed judgment, there is, prior to 1918, a suggestive uniformity running through them. We are aware that the citation of similar cases may shed but little light upon the case under consideration, because, peculiarly in matters of this sort, each case is a law unto itself, but a brief review may be of interest. In 1897, in the case of Hollenbeck v. Mo. Pacific Ry. Co., 141 Mo. 97, 38 S. W. 723, 41 S. W. 887, this court approved a verdict for the loss of a leg amputated below the knee, in the sum of $10,000. In 1906, for a similar injury in the case of Brady v. Railroad, 206 Mo. 509, 102 S. W. 978, 105 S. W. 1195, a verdict for $15,000 was reduced by the court to $10,000, and affirmed. In 1908, in the case of Swearingen v. Mining Co., 212 Mo. 524, 111 S. W. 545, the plaintiff for similar injuries was awarded $10,000 by the jury, and that judgment was affirmed. In 1914, in the case of Kinney v. Metropolitan Street Ry. Co., 261 Mo. 97, 169 S. W. 23, a verdict in favor of the plaintiff for $15,000 for the loss of a leg was affirmed for $10,000. In 1914, in the case of Ostertag v. Union Pac. Ry. Co., 261 Mo. 457, 169 S. W. 1, for the loss of a leg plaintiff recovered a verdict of $15,000, which was reduced by this court to $10,000, and affirmed. In 1917, in the case of Salmons v. St. Joseph & Grand Island Ry. Co., 271 Mo....