Osburn v. Kansas City Southern Ry. Co.

• Citation: 230 S.W.2d 856,360 Mo. 813
• Decision Date: 13 June 1950
• Docket Number: No. 41433,No. 1,41433,1
• Parties: OSBURN v. KANSAS CITY SOUTHERN RY. CO
• Court: United States State Supreme Court of Missouri

Page 856

230 S.W.2d 856

360 Mo. 813

OSBURN v. KANSAS CITY SOUTHERN RY. CO.

No. 41433.

Supreme Court of Missouri, Division No. 1.

June 13, 1950.

Cyrus Crane, Winston H. Woodson, James F. Walsh, all of Kansas City, for appellant, Kansas City Southern Ry. Co.

E. E. Thompson, E. R. Brouse, Sam Mandell, all of Kansas City, for respondent. Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

LOZIER, Commissioner.

Appellant (hereinafter referred to as defendant) appeals from a judgment for damages for personal injuries sustained by respondent (hereinafter referred to as plaintiff) as a result of defendant's negligence. Plaintiff obtained verdict and judgment for $40,000, and, at the trial judge's suggestion, remitted $15,000. Whereupon defendant's motion for directed verdict or for new trial was overruled and judgment was entered for $25,000. The issues here stem from the alleged excessiveness of both the $40,000 verdict and of the $25,000 judgment.

Defendant's first point is that the trial court's conditional order suggesting the remittitur was an abuse of discretion. Defendant says that such order contained the recital that, if the remittitur was not entered, defendant's motion for new trial would be sustained 'because the verdict of the jury was grossly excessive, as alleged in paragraph 15 of defendant's motion for a new trial'; and that, by the use of the words 'grossly excessive,' the court, 'in legal effect, ruled and inferred that the jury was biased and prejudiced against this defendant.' However, this language must be considered with the other grounds assigned in the motion for new trial, and with the other recitals of the conditional order and of the judgment itself.

Among the separate grounds set out in defendant's motion for new trial were: '(14) that the verdict was excessive; (15) that the verdict was grossly excessive; and (16) that the verdict was so excessive as to show on its face that it was the result of bias and prejudice in favor of the plaintiff and against the defendant.'

The order suggesting the remittitur was: 'Now on this day the court, having considered motion of defendant for judgment in accordance with its motion for directed verdict at the close of plaintiff's evidence and its motion for directed verdict filed at the close of all the evidence and its motion for a new trial, arguments of counsel for the parties on said motions heretofore having been heard by the court, now indicates that if plaintiff will within fifteen days from this date remit the sum of fifteen thousand ($15,000.00) dollars from the verdict of the jury as of January 12, 1949, said motions will be overruled, otherwise defendant's motion in accordance with its motion for directed verdict at the close of plaintiff's evidence and defendant's motion for directed verdict at the close of all the evidence will be overruled, and defendant's motion for a new trial will be sustained because the verdict of the jury was grossly excessive, as alleged in paragraph 15 of defendant's motion for a new trial.'

The judgment was: 'The court having fully considered the motion of defendant for a new trial and for judgment on its motions for directed verdict and the arguments of counsel and the authorities, and the court having expressed the view that the verdict of $40,000.00 rendered by the jury and the judgment thereon is excessive to the extent of $15,000.00, and having ruled that unless plaintiff remits said sum off of and from said judgment the motion for a new trial will be sustained on the ground of excessiveness, and that if such remittitur is made, such motion will be overruled, and plaintiff in obedience to the suggeston of the court having filed written remittitur herein in the amount of $15,000.00 and accrued interest on the original judgment, Now, the verdict of the jury and the judgment thereon in the amount of $40,000.00 is by the court set aside and new judgment in lieu and instead thereof is entered in the amount of $25,000.00 and Therefore, it is ordered, considered and adjudged by the court that plaintiff have and recover of and from defendant the sum of $25,000.00.' etc.

It plainly appears that the basis of the trial court's ruling was excessiveness alone and not excessiveness due to passion and prejudice. He did not assign the latter ground although it was specifically urged in the motion for new trial. The inference which defendant would have us draw from the use of the word 'grossly' is not justified and we rule this point against defendant.

Defendant has assigned no errors other than those arising out of the amount of the verdict and the conditional remittitur order. This court has many times ruled that the amount of the verdict, in and of itself, is no indication that the verdict was the result of passion and prejudice on the part of the jury. O'Brien v. Louisville & N. R. Co., 359 Mo. ----, 227 S.W.2d 690.

The cases cited by defendant treat of the relative discretion of trial courts and appellate courts in ordering remittiturs and in setting verdicts aside because of the passion and prejudice of juries. In Bente v. Finley, Mo.App., 83 S.W.2d 155, 161, the appellate court found the verdict was 'unauthorized by any evidence.' In both Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157, and Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126, wherein we discussed the difference between 'excessiveness' and 'excessiveness indicating passion and prejudice,' the latter ground has been expressly assigned by the trial judge. In Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304, we held the issue of excessiveness was not before us where the ground assigned in the motion for new trial was excessiveness due both to jury passion and prejudice and absence of supporting evidence.

In contending that the judgment for $25,000 was excessive, defendant reviews the evidence and argues the weight to be given the medical testimony. However, both the jury and, in turn, the trial court, who heard the testimony and observed the witnesses, have considered and weighed the evidence. Plaintiff established below that he sustained certain injuries as a result of the collision due to defendant's negligence. It is not for us to determine whether he sustained such injuries but whether the judgment given for such injuries is excessive. And, of course, we are to view the evidence in the light most favorable to plaintiff.

Plaintiff, a railway mail clerk, was driving to Union Station, Kansas City, to report for work, Sunday, January 19, 1947. About 7:30 a. m., he was injured in a collision between his automobile and one of defendant's freight trains. Plaintiff, unaccompanied, was driving his coach-type car with divided front seats with movable backs. The grade crossing at 15th Street was blocked by the train and he pulled his car behind several other stopped cars and waited for the crossing to clear. The train was 'cut,' and the crossing cleared. Defendant's watchman motioned the cars to proceed. As plaintiff was crossing the tracks the train was suddenly backed up and plaintiff's car was struck by a railroad coal car. The first impact knocked the front end of plaintiff's car to his left and the coal car struck the automobile again and pushed it about 20 feet across the intersection. He was first thrown to the right, over the right front seat, his head hitting the right side of the car, and then thrown to the left, his left side hitting the left seat, which had 'titled' forward. His shins and left side were bruised.

After the train stopped, plaintiff got out of the car and, with the help of several trainmen, unhooked the bumper of the coach from one of the 'stirrups' of the coal car and drove to the station. He felt a severe burning in his left side and pain in his back and was nauseated. He stopped several times to vomit.

He was pale, shaking and upset when he arrived at Union Station, but made his 'run' to Ellis, Kansas. He had a severe headache, general feelings of shock and severe back pains. He had a large lump on upper right portion of his head. He could not perform his work well because his duties required him to stand up in the moving car and several times had to lie down on mail sacks. He made the return trip to Kansas City Monday, and on Tuesday went to the office of Dr. Paul Moss.

Plaintiff complained to Dr. Moss that coughing would aggravate a pain in his back and said he had pains in his abdomen, head and neck. Examination disclosed a bruise on plaintiff's head, and an incisional scar over the left lumbar region. There was soreness and spasma in the muscles of the neck, in the area of the scar, in the entire lumbosacral region, and in the upper part of the stomach and left kidney areas. The motion of the neck was limited. Urinalysis tests and X-ray photos indicated a traumatic injury to the left kidney, 'a traumatic tissue tear,' which, in the opinion of Dr. Moss, was not due to the 1945 operation. His diagnosis of the back injury was a sprain of the lumbosacral joint. He bandaged plaintiff's back that day.

Dr. Moss gave plaintiff diathermy treatments and had him wear a brace or support for his back. X-ray photos of plaintiff's back and neck, taken in November, 1948, showed the presence of a 'loose calcified body' between the 5th and 6th cervical vertebrae. The X-ray photos showed narrowing of the 3d and 4th lumbar vertebrae, and irregularities indicating bone changes due either to trauma or lumbosacral sprain over a period of years. Dr. Moss testified that, in his opinion, this 'lipping' was an 'arthritic type of change.'

Dr. Moss stated that plaintiff 'has a sprain of the lumbosacral joint with bony changes due to the injury; the back is limited in its motion and function; he has a sprain of his left hip; he has possible traumatic headaches and a sprain of the cervical vertebrae due to tearing of the ligaments; and he had a permanently partial disability of 40%.' He stated that it was not...