Louisville Ry. Co. v. O'Mara

• Decision Date: 29 October 1903
• Citation: 76 S.W. 402
• Parties: LOUISVILLE RY. CO. v. O'MARA.
• Court: Kentucky Court of Appeals

76 S.W. 402

LOUISVILLE RY. CO. v. O'MARA.

Court of Appeals of Kentucky.

October 29, 1903

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"Not to be officially reported."

Action by Wm. S. O'Mara against the Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Fairleigh Straus & Fairleigh, for appellant.

William A. Earl, for appellee.

BURNAM C.J.

The bone of the index finger of the left hand of appellee was broken below the second joint, and the finger mashed, while he was riding upon the rear platform of one of appellant's cars, in consequence of the negligence of appellant's servants. He was employed as a stenographer and typewriter, at a salary of $65 per month, before the accident. As a consequence of his injury, he lost two months from his business, and was compelled to pay a surgeon $125 for his services in dressing the wounded finger every day for about 40 days. At the end of two months he resumed his employment at the salary which he had received previous to his injury, his finger in the meantime having gotten well. He sued the Louisville Railway Company, and recovered a judgment for $1,100, which we are asked to reverse on the ground that the verdict is excessive.

The testimony in the case shows that there was no permanent diminution of plaintiff's ability to earn money in consequence of his injury, and the judgment, after compensating him for loss of wages and doctor's bill awards him $845 for pain and suffering resulting therefrom. Subsection 4 of section 340 of the Civil Code provides that a new trial may be granted, on the application of the party aggrieved, for excessive damages, appearing to have been given under the influence of passion or prejudice. In L & N. R. Co. v. Law (Ky.) 21 S.W. 648, a verdict of $2,000 for an injury to appellee's thumb, which rendered its amputation at the first joint necessary, was held so excessive as to evidence passion or prejudice, and was set aside. In that case the court said: "The amount of damages assessed is so utterly unreasonable and unjust, being at least four times more than it ought to have been, that the verdict clearly appears to us to have been given under the influence of passion or prejudice." In N. N. & M. V Co. v. Walker, 14 Ky. Law Rep. 175, it was held that a verdict for $1,250 for the loss of one joint of the right thumb was so excessive that it should be set aside, the...