Southern Ry. Co. v. Stallings, 6 Div. 63

CourtAlabama Supreme Court
Writing for the CourtGOODWYN
Citation268 Ala. 463,107 So.2d 873
Docket Number6 Div. 63
Decision Date06 November 1958

Page 873

107 So.2d 873
268 Ala. 463

6 Div. 63.
Supreme Court of Alabama.
Nov. 6, 1958.
Rehearing Denied Jan. 8, 1959.

[268 Ala. 464]

Page 875

Cabaniss & Johnston, Leigh M. Clark and Drayton T. Scott, Birmingham, for appellant.

[268 Ala. 465] Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.

GOODWYN, Justice.

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

Page 876

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 [268 Ala. 467] 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.

* * *

* * *

'Our cases consistently hold that the present value of a dollar as compared with its value in former years must be considered in determining whether the amount awarded by a jury is excessive. Birmingham Electric Co. v. Thompson, 251 Ala. 465, 37 So.2d 633; Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830; Magic City Bottling Co. v. Tolbert, 34 Ala.App. 516, 41 So.2d 619.'

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.

Page 877

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:

'In cases of this character, even the trial court will not set aside the verdict of the jury merely because, in its opinion the jury gave too much or too little; and when the trial court has refused to disturb a verdict on account of the amount recovered, the appellate court is very reluctant to substitute its judgment for that of the jury and the court below. We will not do so unless the amount is so excessive, or so grossly inadequate, as to be indicative of prejudice, passion, partiality, or corruption on the part of the jury. Florence Hotel Co. v. Bumpas, 194 Ala. 69, 69 So. 566, Ann.Cas.1918E, 252; Central of Georgia R. Co. v. White, 175 Ala. 60, 56 So. 574.'

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):

'* * * He was complaining of discomfort and deformity in his right wrist region. The circulation seemed good and there did not appear to be any major nerve disturbances. There was roughening of the end of the large bone of the forearm where it joined the wrist. X-rays revealed that he had 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 line. There was also a little fracture of the ulna styloid. The larger fracture had a solid bony union but there was no evidence of healing of the fracture of the ulna styloid at the time Dr. Terhune first saw plaintiff. The shortening[268 Ala. 468] of the radius of about a quarter of an inch had caused the radial deviation of the hand at the wrist. At that time Dr. Terhune thought Mr. Stallings would improve with conservative treatment, which was given. On October 4, 1954, plaintiff complained of some discomfort but to a much less degree and said he was much improved by the treatments and that he was using his hand and wrist more. On October 25 he was worried about the continuance of discomfort in the region of the ulna styloid of the wrist. On November 5 Mr. Stallings reported his wrist was better but he had had a bad cold which had prevented him from coming for his treatments. On November 12 he said his wrist was feeling better and his bad cold was much better and he was advised he should return to work. He returned to the doctor on November 19 and stated that he had returned to work on November 13 but had twisted his wrist on November 18 and that this had caused him severe pain. At that time he had some swelling around the soft tissues of his wrist. On December 3 he reported that he had continual pain in his wrist. He was X-rayed again and Dr. Terhune recommended surgery to consist of removal of the styloid and shortening of the

Page 878

ulna to accommodate for the narrow short radius. He was admitted to the West End Baptist Hospital on December 12 and the surgery recommended was performed on December 13. The ulna styloid was removed and about an inch of the distal end of the ulna shaft was taken out to make it conform to the shortened radius. The torn ligament was repaired and stabilized. He remained in the hospital five days. The incision healed nicely and he was given physiotherapy and heat treatments. In January, 1955, he had gained motion, strength and had much less pain. He had much improved motion of his hand and wrist. Dr. Terhune continued to treat him frequently, but in March thought he could stop his treatments at the office. He saw him again on March 11, 1955. He made a good full fist. There was some weakness of his grip. At that time he was not able to do heavy lifting and straining, but there were some things he could do....

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