Southern Ry. Co. v. Stallings, 6 Div. 63
Citation | 268 Ala. 463,107 So.2d 873 |
Decision Date | 06 November 1958 |
Docket Number | 6 Div. 63 |
Parties | SOUTHERN RAILWAY COMPANY v. Millard STALLINGS. |
Court | Supreme Court of Alabama |
Cabaniss & Johnston, Leigh M. Clark and Drayton T. Scott, Birmingham, for appellant.
Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.
This is an appeal by Southern Railway Company, defendant below, from a personal injury judgment in favor of Millard Stallings, plaintiff below, for $30,000 and from an order overruling defendant's motion for a new trial. The action is brought under the Federal Employers' Liability Act. 45 U.S.C.A. § 51 et seq.
Plaintiff was injured on June 14, 1954, while working for the defendant as a boilermaker in its Norris Yards in Jefferson County. The case went to the jury only on count two as last amended. For answer to the complaint the defendant interposed a plea in short by consent. Amended Count two alleges that plaintiff 'was caused to slip and fall by reason of an oily and slippery place on the floor' of the diesel shop where he was working. It is charged that defendant 'negligently failed to exercise reasonable care to furnish and maintain plaintiff a reasonably safe place to perform his work for the defendant.' Plaintiff's injuries and damages are alleged to be as follows: 'The bones in plaintiff's right hand were broken and crushed and the muscles, nerves, tendons and ligaments in his said hand were torn and injured,' which caused great physical pain and mental anguish to plaintiff; that plaintiff 'was permanently injured'; that 'he will be caused to suffer great physical pain and mental anguish in the future'; that 'his nerves and nervous system were shocked and impaired and he was caused to be hospitalized and caused to undergo serious and painful medical and surgical care and treatment for said injuries'; that he 'was caused to lose wages from his regular employment as a boilermaker and his power and capacity to work and earn money has been permanently impaired.'
While not admitting that defendant's negligence proximately caused plaintiff's injury, the defendant says in brief that 'the point is not made on this appeal that a jury issue was not presented as to liability or that the verdict as to liability is against the great weight of the evidence.'
The points argued by appellant, and relied on for reversal, are thus stated in its brief:
I. 'A verdict for $30,000.00 in favor of a 54 year old boilermaker for a fractured right wrist, not disabling him from general remunerative employment, is excessive.'
II. 'In the absence of some evidence of total disability the computation of an actuary as to the present value of full earnings projected over a period of plaintiff's life expectancy is incompetent and prejudicial.'
III. 'An instruction which invades the province of the jury is erroneous.'
IV. 'Refusal upon appropriate request to instruct the jury that if any juror is not reasonably satisfied from the evidence of the plaintiff's right to recover or of the truth of all the material averments of at least one count of the complaint constitutes reversible error.'
After carefully considering the evidence, in the light of applicable rules of review, we find no justifiable basis for ordering a remittitur (as a condition to affirmance) on the ground that the jury's verdict was excessive.
When this court has before it a question of excessiveness of a jury's verdict there are certain well-established rules which control our review. As said in Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 581, 80 So.2d 288, 298:
'This court has laid down the principle that a verdict will not be disturbed as excessive where the trial court has refused to disturb the amount unless so excessive as to indicate passion, prejudice, corruption or mistake. Montgomery City Lines, Inc., v. Davis, 261 Ala. 491, 74 So.2d 923. And we have held that the correctness of a jury's verdict is strengthened when the presiding judge refuses to grant a new trial. Simpson v. Birmingham Electric Co., 261 Ala. 599, 75 So.2d 111; Gulf, Mobile & Ohio R. Co. v. Sims, 260 Ala. 258, 69 So.2d 449. Furthermore this court has said that, 'Where there was evidence which, if believed, authorized the verdict [this court] will not reverse a judgment refusing a new trial.' Montgomery City Lines, Inc., v. Davis, supra [261 Ala. 491, 74 So.2d (923) 926]; Union Central Life Ins. Co. v. Guffin, 232 Ala. 254, 167 So. 321; Ray v. Richardson, 250 Ala. 705, 36 So.2d 89; Kurn v. Counts, 247 Ala. 129, 22 So.2d 725.
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See, also, Firestone Tire and Rubber Company v. Nixon, 264 Ala. 433, 435, 87 So.2d 829; Hudson v. Stripling, 261 Ala. 196, 203, 73 So.2d 514; Alabama Great Southern R Co. v. Baum, 249 Ala. 442, 449, 31 So.2d 366, 372. In the last cited case (an action under the Federal Employers' Liability Act) it was said:
The plaintiff in the case before us, at the time of his injury on June 14, 1954, was 51 years old. He had been employed by defendant since the age of 15, the first four years as an apprentice boilermaker and thereafter as a 'full-fledged' boilermaker. He left school in the 7th grade. During the two years prior to his injury his monthly earnings were around $375 a month. Between the time of his injury and the date of trial (April 23 and 24, 1956) plaintiff was able to work a total of 'about 30 or 31 days.' There is medical testimony (Dr. S. Ralph Terhune, an orthopedist of Birmingham) that plaintiff had a 50% permanent disability in the use of his right wrist; that he had a badly displaced fracture of the large bone of the forearm at its distal end with severe displacement of the fragments, and multiple fracture lines, and also a fracture of the ulna styloid. Dr. Terhune first saw plaintiff on September 20, 1954, when he was sent by another doctor for treatment. His testimony is stated in appellant's brief to be as follows (which we think, with some additions, is adequate to show the nature of plaintiff's injury):
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