St. Louis & S. F. Ry. Co. v. Hays

• Decision Date: 13 October 1924
• Docket Number: 24223
• Citation: 101 So. 548,136 Miss. 701
• Parties: ST. LOUIS & S. F. RY. CO. v. HAYS. [*]
• Court: Mississippi Supreme Court

101 So. 548

136 Miss. 701

ST. LOUIS & S. F. RY. CO. v. HAYS. ^[*]

No. 24223

Supreme Court of Mississippi

October 13, 1924

Division B

Suggestion of Error Overruled Nov. 10, 1924.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Action by Vince A. Hays against St. Louis & San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

D. W Houston, Sr. & Jr., for appellant.

The verdict for twenty-five thousand dollars is excessive and evinces passion and prejudice. The declaration does not claim that his earning capacity or health was entirely destroyed, but that his earning capacity was greatly reduced, and his health is seriously impaired. He testifies, and it is undisputed, that he was rushed at once to a hospital in an ambulance, given hypodermics, that he was operated on May 2, 1923, and only stayed in the hospital until May 28th, and then went home.

The plaintiff did not introduce any physician at all to show his present or continuing suffering. The only expenses he proves are one hundred and fifty dollars for an artificial foot, and Dr. Eugene Johnson twenty-five dollars and nurse's bill for ten dollars for giving the ether, and medicine he bought trying to cure up the wound. The railroad surgeon; without cost to plaintiff, amputated his foot.

The doctor's statement is that the amputation was about ten inches below the knee. While the plaintiff tries to make it appear that he has no earning capacity and is unable to engage in any business, still this court knows that a man with only his foot amputated, where plaintiff's is shown to be amputated, is not totally disqualified or incapacitated from engaging in business and that a great many men only so disabled do so with great ease; and we call the court's attention to the fact that with the large amount of accident insurance which this plaintiff is shown to have received that he would be enabled to begin to engage in some business. In other words, as it appears to us from this record, it would only be necessary for him to secure him a cork foot and go along about his business, and to allow a twenty-five thousand dollar judgment to stand for such an injury as the plaintiff is shown to have suffered, would be but placing a premium on the loss of a foot.

This verdict was grossly excessive, and so much so as to evince passion and prejudice upon the part of the jury, which is exactly what the jury's verdict was based upon. Of course, if this is a suit under the federal Employers' Liability Act, as counsel contends, then no punitive damages can be recovered. 2 Roberts F. Liab. Car. (1918), sec. 621; R. R. v. Cobb, 94 Miss. 561-6, 48 So. 522; Y. & M. V. R. R. Co. v. Cockerham, 99 So. 16 (Miss.); Dir. Gen'l v. Neely (Miss.), 85 So. 197-8; A. & V. Ry. Co. v. Dennis, 91 So. 4; Lowe v. Morgan (La.), 90 So. 429.

The following are some verdicts for the loss of one leg which have been declared excessive: Cotton Oil Co. v. Beacham, 31 Okla. 384, 120 P. 969; Galveston, etc., v. Bernard, 57 S.W. 686; I. & G. N. R. R. Co. v. Brice, 126 S.W. 613; Kennon v. Gilmer, 9 Mont. 109, 22 P. 448; Aluminum Co. v. Ramsey, 89 Ark. 532, 117 S.W. 568; T. & N. O. R. R. v. Conway, 44 Tex.Civ.App. 68, 98 S.W. 1070; Newcomb v. N. Y., 182 Mo. 687, 81 S.W. 1069; Melse v. Alaska, etc., 42 Wash. 356, 84 P. 1127; Brady v. K. C. St. L. & C. R. Co., 206 Mo. 509, 102 S.W. 978, 105 S.W. 1195; Ostertag v. Union Pac., 261 Mo. 457, 169 S.W. 1; Wimber v. Iowa Central Ry., 114 Iowa 551, 87 N.W. 505; Budge v. Morgan, etc., 108 La. 349, 32 So. 535; Wheeler v. Sioux City, etc., 162 Iowa 414, 142 N.W. 400; Bell v. Globe, 107 La. 725, 31 So. 994; Bell v. Houston, etc., R. R., 132 La. 88, 60 So. 1029; Applegate v. Quincy R. R., 252 Mo. 173, 158 S.W. 376; Morris v. R. R., 68 Hun. (N. Y.) 39, 5 Am. Neg. Cas. 542.

Geo. T. & Chas. S. Mitchell and R. G. Draper, for appellee.

I. Counsel for appellant insist that the verdict is excessive and evinces passion and prejudice on the part of the jury, and in support of their position they cite numerous cases. An examination of most of these cases reveals the fact that the great majority of them were decided years ago when the purchasing value of a dollar was great. Some of them are more recent but in most of these the earning capacity of the party injured where death did not result, was very small and of course this was taken into consideration in fixing the amount of the judgment; in others, where death did result, the dependents had reached a good old age, and this, of course, figured materially in fixing the amount of the judgment. It must be conceded that on this proposition a multiplicity of cases pro and con, can be produced, but at last the one controlling feature is the facts of the particular case, the injury sustained, the suffering endured and the absolute impairment of the earning capacity. Y. & M. V. R. R. Co. v. Wallace, 45 So. 857; Hardy v. M. C. R. R. Co. (Miss.), 41 So. 505; Railroad Co. v. Williams, 183 Ala. 138, 62 So. 679, Ann. Cas. 1915D 488.

II. The purchasing power of a dollar now is at least fifty per cent less than in 1913. The fact that the undisputed testimony shows that plaintiff has not been able so far, and probably will not be able, to wear an artificial leg, forms a considerable element of damage in this case as has been announced in Thompson v. Smith, 253 S.W. 1023; Lerette v. Davis, 137 N.E. 811.

In Roeder v. Erie R. R. Co., 164 N.Y.S. 167 (1917), plaintiff's arm was crushed off at the shoulder. His verdict was thirty-two thousand five hundred dollars. The New York court in affirming this judgment says: "No rule has been set by which such damages can be determined mathematically. The question involved is what would be the proper compensation for pain, the humiliation for maiming, the recognized disability of being crippled, and how far the injuries have retarded the victim's progress." See, also, Fried v. N. Y., N. H. & H. R. R. Co., 170 N.Y.S. 687; Curran v. Union Yards of Omaha, 196. N.W. 135; A. C. L. R. R. Co. v. Whitney, 61 So. 179; Ferris, Receiver v. Shandy, 174 P. 1060; Easterling Lumber Co. v. S.W. Pearce, 106 Miss. 672; A. & V. R. R. Co. v. Dennis, 91 So. 4; R. R. Co. v. Combs, 250 S.W. 714, twenty-five thousand dollars for loss of leg; R. R. Co. v. Carnahan, 60 L.Ed. 979, 118 Va. 46; twenty-five thousand dollars--loss of leg--earning capacity one hundred dollars a month; R. R. Co. v. McMichael, 171 S.W. 115 (1914), twenty-five thousand dollars--leg below knee for man earning seventy dollars a month; R. R. Co. v. Harris, 172 S.W. 1129, twenty thousand dollars--leg below knee, (1914); Burch v. R. R. Co., Ann. Cas. 1912B. 1166 (Nev.), twenty thousand dollars loss of leg and toes for thirty-seven-year-old switchman earning one hundred dollars per month; New v. Stout, 227 P. 519 (Okla.), twenty thousand dollars, loss of leg and other injuries to fifteen year-old boy; Yukonis v. R. R. Co., 213 F. 537, thirty-six thousand dollars loss of sight to fifty-two-year-old man earning nine hundred dollars annually; Hudgins v. R. R. Co., 5 N.C. C. A. 766 (1913) (S. C.), forty thousand dollars personal injuries, earning one hundred and fifty dollars per month.

Argued orally by D. W. Houston, Sr., for appellant and Geo. T. Mitchell and R. C. Draper, for appellee.

OPINION

ETHRIDGE, J.

The appellee was plaintiff below, and sued the appellant for an injury received as an employee of the appellant engaged at the time of the injury in interstate commerce, the injury being occasioned by a defective stirrup or foothold on the car of the appellant. The injury occurred in the state of Arkansas, where the plaintiff was working for the defendant as a brakeman. He was riding on the top of a car while transferring some cars from a point on the appellant's line to another point on a connecting line of another railroad. During the journey the brakes stuck, and it was necessary for the plaintiff as brakeman to descend from the cars and inspect the trouble and remove the cause of it which, he did by "bleeding" the brakes, a process by which the brakes were loosened. The train was running at a slow rate of speed, and the plaintiff bled several of the brakes on defendant's cars, which caused the speed of the train to increase. The plaintiff attempted to remount the train, and testifies that the stirrup or fixture provided for the use of the brakeman in so mounting the cars gave way and caused him to fall and his foot to be crushed, necessitating amputation about ten inches below the knee. The defendant is a nonresident corporation of Mississippi, incorporated under the laws of Missouri, and the plaintiff was a non-resident of Mississippi, residing at the time of the accident in the state of Tennessee and in the city of Memphis. When the cause came on to be heard before the circuit court at the return term, a motion was made to transfer the cause to the federal court of the Eastern division of the Northern district of Mississippi on the ground of nonresidence of the defendant. Affidavit and bond were tendered in court with the motion. When the motion was first presented...