Nix v. Gulf, M. & O. R. Co.

• Decision Date: 09 April 1951
• Docket Number: No. 41980,No. 1,41980,1
• Court: Missouri Supreme Court
• Parties: NIX v. GULF, MOBILE & OHIO R. CO. et al

Page 709

240 S.W.2d 709

362 Mo. 187

NIX v. GULF, MOBILE & OHIO R. CO. et al.

No. 41980.

Supreme Court of Missouri, Division No. 1.

April 9, 1951.

Motion for Rehearing or to Modify or to Transfer to Court en

Banc Denied June 11, 1951.

As Modified June 21, 1951.

Ben W. Swofford, Robert A. Schroeder, Laurence R. Smith and Swofford, Schroeder & Shankland, all of Kansas City, for appellant.

Charles M. Miller, Kansas City, for respondent and defendant, Gulf, Mobil & Ohio R. Co.

Horace F. Blackwell, Jr., John H. Lathrop, and James F. Walsh, all of Kansas City, for respondent, Kansas City Terminal Ry. Co.

LOZIER, Commissioner.

This is an action to recover for personal injuries. Plaintiff had a $20,000 verdict against the defendant, Gulf, Mobile & Ohio Railroad Company (hereinafter referred to as the railroad). The jury found in favor of the other defendant, Kansas City Terminal Railway Company (hereinafter referred to as the terminal). The trial court ordered an $8,000 remittitur, which plaintiff refused to enter. The railroad's motion for new trial was sustained on the ground that the verdict was excessive. This appeal is from that order.

The terminal's motion here to dismiss this appeal as to it, taken with the case, is sustained. Verdict was for plaintiff and against the railroad and for the terminal and against plaintiff. Judgment was entered accordingly. Plaintiff filed no motion for a new trial as to the terminal. The railroad's motion for a new trial was directed against the verdict and judgment as to it, and asked no relief against the judgment in favor of the terminal. Plaintiff appealed only from the order sustaining the railroad's motion and the railroad did not appeal from the judgment in favor of the terminal. Thus, the terminal is not a party in this appeal.

It neither appears nor was argued here that plaintiff's right of recovery would be limited to a judgment against the defendants jointly. Compare Cameron v. Howerton, Mo.Sup., 174 S.W.2d 206. The trial theory of each defendant, as shown by their requested given instructions, respectively, would justify a verdict against its codefendant alone. Granting the railroad a new trial as to it did not necessitate granting a new trial as to the terminal, and the judgment in favor of the terminal was not affected by the sustention of the railroad's motion. 66 C.J.S., New Trial, Sec. 12, p. 100; Hunt v. Kansas City, Mo.App., 114 S.W.2d 153; Fitzpatrick v. Sheppard, 346 Pa. 240, 29 A.2d 475; and United Retail Cleaners & Tailors Ass'n v. Denahan, D.C.Mun.App., 44 A.2d 69. See also Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767.

The principal issue is whether the trial court abused its discretion in ordering the remittitur, and, upon plaintiff's refusal to comply, in granting a new trial on the ground of excessiveness of the verdict. Plaintiff's position, as stated in his brief, is: 'Appellant is not unmindful of the general rule that the order of a trial judge with reference to the amount of the verdict will be disturbed upon appeal only where it is shown the trial judge abused his discretion. We strongly urge, however that this case falls within the classification and the record clearly indicates that the trial judge did abuse his discretion by ordering the remittitur.'

Before summarizing the evidence, we restate the principles governing an appellate court's review of a trial court's order granting a new trial on the ground that the verdict was either excessive or inadequate. Such an order is the equivalent of the granting of a new trial upon the ground that the verdict is against the weight of the evidence. Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 171 S.W.2d 610; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; Lang v. St. Louis Public Service Co., Mo.App., 204 S.W.2d 504; O'Shea v. Pattison-McGrath Dental Supplies, 352 Mo. 855, 180 S.W.2d 19; and Mitchell v. Pla-Mor, Inc., Mo.Sup., 237 S.W.2d 189, and Steuernagel v. St. Louis Public Service Co., 361 Mo.Sup. 1066, 238 S.W.2d 426, decided concurrently herewith.

In ruling a motion for a new trial, a trial court is vested with a wide discretion. This is particularly important where the motion has been sustained because of the amount of the verdict, or has been determined after consideration of the weight of the evidence. O'Shea v. Pattison-McGrath Dental Supplies; Lang v. St. Louis Public Service Co.; Mitchell v. Pla-Mor, Inc.; and Steuernagel v. St. Louis Public Service Co., supra; Moss v. May Department Stores, Mo.App., 31 S.W.2d 566; Reichmuth v. Adler, 348 Mo. 812, 155 S.W.2d 181; and De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93.

So, while this court has not weighed the evidence relating to plaintiff's disabilities, we have examined the record to determine whether there was substantial evidence to sustain the trial court's view that such disabilities were not as serious or as permanent as claimed or that some of the disabilities did not result from the accident. Riche v. City of St. Joseph, 326 Mo. 691, 32 S.W.2d 578; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458; Albert H. Hoppe, Inc., v. St. Louis Public Service Co., Mo.App., 227 S.W.2d 499; Green v. First National Bank of Kansas City, 236 Mo.App. 1257, 163 S.W.2d 788, 173 S.W.2d 763; and Esselmann v. Devereux, Mo.App., 78 S.W.2d 515.

Plaintiff asserts that 'in reviewing the matter of damages on appeal, the evidence is viewed in the light most favorable to the plaintiff,' citing Osburn v. Kansas City Southern Ry. Co., 360 Mo. 813, 230 S.W.2d 856. A single sentence in that opinion and a statement in Dodd v. Missouri-Kansas-Texas R. Co., 354 Mo. 1205, 193 S.W.2d 905, appear to support plaintiff's contention. However, examination of these two decisions shows that, in both instances, this court reviewed the evidence in the light most favorable to sustaining the ruling of the trial court. See Steuernagel v. St. Louis Public Service Co.; Murphy v. Kroger Grocery & Baking Co., and Mitchell v. Pla-Mor, Inc., supra.

The rule urged by plaintiff does not apply to an appellate court's review of a trial court's ruling involving the power of the trial court to weigh the evidence--including that of the amount of damages. Sofian v. Douglas; Murphy v. Kroger Grocery & Baking Co.; Lang v. St. Louis Public Service Co.; O'Shea v. Pattison-MGrath Dental Supplies; Mitchell v. Pla-Mor, Inc., and Steuernagel v. St. Louis Public Service Co., supra. In the instant case, it is not our duty to consider the evidence in the light most favorable to plaintiff. Our obligation is to determine whether the trial judge, who weighed all the evidence, abused his discretion. In other words, we are not exercising discretion; we are only determining whether the trial judge, in the exercise of his discretion, was guilty of an abuse of discretion.

Plaintiff, 52 years old at trial time, sustained his injuries on February 16, 1948. He was a railway mail clerk, and was working that evening in a combination mail-baggage car in one of the railroad's trains in the Kansas City Union Station. This train was standing upon tracks, part of the terminal's union station terminal facilities, over which the railroad had been granted the right to operate its (the railroad's) trains. The mail car was near the 'head' or east end. Prior to the scheduled departure time, 11 p. m., plaintiff was working in the mail car, near the loading door on the south side of the car, being engaged in loading mail sacks and pouches.

About 11 p. m., a locomotive, owned by the railroad and operated by its employees, backed in on these tracks from the east and coupled onto the train. The coupling was rough and caused the train to lurch and jerk violently. At the moment of impact, plaintiff was facing the open loading door and had just stooped over to pick up a mail pouch on the floor. He was thrown to the east and fell headlong, the left side of his head striking the base of an iron stanchion.

In ruling the issue of the claimed excessiveness of the $20,000 verdict, the trial court was required to weigh all the evidence relating to the nature, extent and cause of plaintiff's injuries. Plaintiff's testimony was that: he was knocked unconscious and remained so for a short time; after regaining consciousness, he was dazed until after the train left the station; he made his usual 'run' terminating the next morning at Springfield, Illinois; he made the return run to Kansas City that night; the night of the accident he was not able to do his work properly and lay down part of the time; he had a bump above his left ear; his right arm was 'badly jammed up', his back was sore and his neck was stiff; he suffered severe headache that night and the following day; he continued his work as a railway mail clerk until July 13, 1948, but was able to make only about one-half of his run; he resigned in July, 1948, because he could not do the work properly; he continued to have severe headaches and at times suffered from blurred vision and dizziness; his back is weak; his right arm does not function properly and he cannot raise it above his head without severe pain; the fingers of his right hand fumble and seem to be 'kind of semi-paralyzed'; he lost about 35 pounds in weight and has trouble sleeping; he has not been able to work since July, 1948, or to do gardening or carpenter work around his house.

Plaintiff did not see a physician until approximately a month after the accident when he was examined by a government doctor at the request of the district super-intendent of mails. In April, 1948, he was twice examined by Dr. A. L. Skoog. Dr. Skoog examined him a third time in December, 1949, shortly before the trial. In August and September, 1948, he went to a Dr. Zeilinger two or three times and this doctor prescribed rest. On December 9 and 10, 1949, he was examined by Dr. B. A. Poorman. None of the doctors plaintiff consulted and who examined him either took X-ray pictures or prescribed a...