Larson v. Russell
| Decision Date | 11 December 1919 |
| Citation | 176 N.W. 998,45 N.D. 33 |
| Court | North Dakota Supreme Court |
Judgment reversed on Rehearing February 14, 1920. Rehearing denied March 9, 1920.
Appeal from Cass County District Court, A. T. Cole, J.
Judgment affirmed.
Affirmed.
M. A Hildreth (John Carmody, of counsel), for appellant.
The verdict is excessive. It is not sustained by the evidence and indicates passion and prejudice, which vitiates the verdict and on this ground alone a new trial should be granted. Carpenter v. Dickey, 26 N.D. 176, 143 N.W. 964; Waterman v. Minneapolis, St. P. & S. S. M. R. Co. 26 N.D. 540; Rev. Codes 1905, § 7063; Pertello v. Missouri Pacific, 117 S.W. 138; Ice Co. v. Tamm, 90 Mo.App. 202; Gibney v. Transit Co. 204 Mo. 704, 103 S.W. 43.
We think the ends of justice will be subserved by a new trial. Johnson v. Great Northern R. Co. 107 Minn. 285, 119 N.W. 1061; Landro v. Great Northern R. Co. 114 Minn. 162, 130 N.W. 553; Bucher v. Wisconsin C. R. Co. 139 Wis. 597, 120 N.W. 518; Louisville & N. R. Co. v. Reaume, 107 S.W. 290; Gibney v. St. Louis Transit Co. 103 S.W. 43.
No verdict of the size of the verdict in this case should be permitted to stand based upon such testimony. Johnson v. Great Northern R. Co. 107 Minn. 285, 119 N.W. 1061; DePow v. Chicago & N.W. R. Co. 138 N.W. 43; Schwartzbaeur v. Great Northern R. Co. 112 Minn. 356, 128 N.W. 286; Oberg v. N. P. R. Co. 136 F. 981.
The opinion of the experts for the plaintiff that she was permanently injured was not based on anything substantial, but was purely speculative. Bucker v. Wisconsin C. R. Co. 139 Wis. 597, 120 N.W. 518; Morrison v. Northern P. R. Co. 74 P. 1064; Goken v. Dallugge, 99 N.W. 819; Goken v. Dallugge, 103 N.W. 287.
To entitle a plaintiff to recover present damages, for apprehended future consequences, there must be such a degree of probability of their occurring as amount to a reasonable certainty that they will result from the original injury. Curtis v. Rochester & S. R. Co. 18 N.Y. 541; Filer v. New York C. R. Co. 49 N.Y. 45; Clark v. Brown, 18 Wend. 229; Lincoln v. Saratoga & S. R. Co. 23 Wend. 435; Strom v. New York L. R. & W. R. Co. 96 N.Y. 305; Shoemaker v. Sonji, 15 N.D. 518, 108 N.W. 42; Elzig v. Bales, 112 N.W. 540; Chicago M. & St. P. R. Co. v. Lindeman, 143 F. 946; Hemenway v. Washington Water Power Co. 95 P. 269; Louisville & N. R. Co. v. Reaume, 107 S.W. 290.
Considering the plaintiff's earning capacity the verdict was excessive and unreasonable. Louisville & N. R. Co. v. Reaume, supra; Louisville Southern R. Co. v. Minogue, 12 Ky. L. Rep. 378, 14 S.W. 357; Rooney v. New York N. H. & H. R. Co. 53 N.E. 435; Peterson v. Roessler & H. Co. 131 F. 156.
This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the falling of a portion of the wall of a building owned by the defendant. It appears that on February 3, 1915, the plaintiff was working in the capacity of a domestic servant, in the rooming house occupying a building known as the Ely Block and Annex on Broadway in the city of Fargo. The portion of the building which was used as a rooming house had been leased to her brother-in-law, one Papas or Papamanoles, and the lease assigned by the latter to Emma Larson, the mother of the plaintiff. On the date mentioned, while the plaintiff was thus employed, she had occasion to go down the steps of a stairs on the outside at the rear of the building, and while making the descent a section of the veneered brick wall fell out, some of the bricks striking the plaintiff and inflicting injuries upon her. The case was tried in the district court of Cass county in January, 1918, and a verdict rendered in favor of the plaintiff for $ 26,000. The defendant later moved for judgment notwithstanding the verdict, or, in the alternative for a new trial. This appeal is from the order of the trial court denying a new trial and from the judgment entered on the verdict. Upon this appeal the appellant has made ninety-four assignments of error.
It will be unnecessary to consider all of the assignments, but such of them will be referred to as appear to have most merit.
It is first contended that the verdict is so excessive as to indicate that it was rendered under the influence of passion or prejudice, thus necessitating a new trial. Comp. Laws 1913, § 7660. The argument in support of this contention concerns itself with two main propositions: (1) That the evidence is insufficient to establish that the plaintiff suffered a permanent injury; and (2) assuming such permanent injury to have been established, the plaintiff had not sufficient earning capacity to warrant a verdict for the sum given. The proper weighing of this contention has involved a painstaking examination of the record by every member of this court, and has led to the formation of different conclusions therefrom. A statement of the facts which the record discloses, bearing upon the physical condition of the plaintiff, according to the views of the majority of the court, shows that a question of fact was presented for the consideration of the jury and that their verdict in response to it is one that finds substantial support in the evidence.
At the time the plaintiff received the injury she was twenty-two years of age. She enjoyed good health and was receiving for the work that she had been doing $ 25 per month and her room and board. On the day of the accident the plaintiff's brother found her lying at the bottom of the stairway at the rear of the building in an unconscious condition with the bricks from the fallen wall lying upon and about her. She was carried to a room in the building bleeding at the mouth and nose and upon her back there was a bruised area over the spinal column and about the shoulder blades. A doctor was at once called to attend her and up to the day of the trial she had been constantly under the care of this physician. Between the date of the injury and the date of the trial, a period of approximately three years, the plaintiff had been bedfast and in a paralyzed condition which her doctor described as traumatic neurosis. This disease is attributed to the injury in question and the diagnosis of its presence is positive. The defendant, on the other hand, and experts testifying on her behalf, contend that the plaintiff is afflicted with hysteria; that she has no traumatic neurosis and no motor paralysis; that she would be able to move about in a normal way if she willed to do so.
The condition of the plaintiff was presented to the jury by the testimony of six doctors who had observed her, by a nurse, her relatives who had attended her, and by herself, she being present during the trial and giving testimony from a cot upon which she was carried back and forth. The physician who saw her first was Dr. J. W. Vidal, a homeopathic physician who had been graduated from the University of Michigan and who had had thirty-four years of experience. At the time he first saw her, which was about noon on the day of the accident, he says that she apparently could not move any part of her body, and that she apparently did not understand anything he said to her; that she was perfectly placid and couldn't move; that from the date of the accident to the date of the trial he had visited her about two hundred and fifty times; that he was assisted in the treatment by Mrs. Nelson, a nurse, who had applied hot packs to the spine and massaged her with the hand and a vibrator, followed by alcohol rubs and the use of a chemical light known as "lucredescent" light. In treating her he had observed her inability to move her body to the extent that if, in turning her, her face should be turned directly on to the pillow, she would smother, as she couldn't move from that position to enable her to breathe. But notwithstanding the motor paralysis described by Dr. Vidal, he also testified that, according to his observations, the plaintiff suffered great pain when various portions of her body were touched, as, for instance, when soliciting the patella reflex or in moving the head. He testified that in his opinion the patient was suffering from what he termed spinal neurosis, and that she was permanently injured. The peculiarity of her condition is that the posterior motor nerves are paralyzed, while the sensory nerves are not paralyzed but are exaggerated.
Dr. Francis Peak, a homeopathic physician of thirteen years' experience, testified in detail concerning the examination he made of the patient, and not only confirmed the diagnosis given by Dr. Vidal, but gave a scientific explanation of the possibility of there being a paralysis of the motor nerves without accompanying paralysis of the sensory nerves.
Dr. Olaf Hagen, of Moorhead, Minnesota, a graduate of the University of Minnesota and a practitioner of eleven years' experience, also testified confirming the diagnosis.
Three doctors called by the defendant testified as experts. They were Drs. McGregor, Sorkness, and Wheeler. These men likewise possessed the usual qualifications, and they testified as to their observations from personal examination of the plaintiff, as well as in response to hypothetical questions. The principal point of difference between the opinions of the experts testifying at the instance of the defendant and those testifying for the plaintiff is as to the possibility of there being a condition of paralysis affecting the motor nerves which does not at the same time affect the sensory nerves. Dr. McGregor, for instance, testified that as a general proposition a paralyzed...
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