Stolze v. St. Louis Transit Co.

• Decision Date: 24 May 1905
• Citation: 87 S.W. 517,188 Mo. 581
• Parties: STOLZE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

87 S.W. 517

188 Mo. 581

STOLZE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

STREET RAILWAYS—NEGLIGENCE—PERSONAL INJURIES TO PASSENGER—EXCESSIVE VERDICT.

In an action against a street railway for personal injuries caused by a collision of two of defendant's cars, on one of which plaintiff was a passenger, a verdict for $15,000 held excessive under the evidence.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action by John Stolze, by curator, against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that plaintiff enter a remittitur of $7,000.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. Patrick Leahy and A. R. Taylor, for respondent.

BRACE, P. J.

This is an appeal by the defendant from a judgment of the circuit court of St. Charles county in favor of the plaintiff for the sum of $15,000 in an action for damages for personal injuries caused by a collision of two of defendant's cars, on one of which he was a passenger, in which the only error assigned is that the verdict of the jury upon which the judgment was rendered is grossly excessive. Plaintiff was injured on the 28th of July, 1901, and the trial was on December 10, 1902. It appears from the evidence that at the time of the collision the plaintiff was about 18 years and 6 months old; that he was a barber by trade; that he was working for $3 a week, his board and washing; that directly after his injury he was taken to a hospital, and remained there under surgical treatment for 11 months. The hospital charges were $5 a week, and the charges for surgical and medical service were $500. Dr. Lutz, the physician who attended him in the hospital, and who was introduced by the plaintiff, testified as follows as to the character and extent of his injuries: "Q. Doctor, did you ever have occasion to treat the boy plaintiff, John Stolze? A. Yes, sir; I treated him for fractures of both legs. Q. For fractures of both legs? A. Yes, sir. Q. Describe to the jury, doctor, the fractures you found on his legs. A. Well, he had on the right leg an open compound fracture, and on the left leg he suffered from a compound comminuted fracture. That means that the bone was broken into several pieces on the left leg. Q. Do you remember, doctor, whether the bones of the right leg came out? A. No, they did not; but there was an opening through the skin, which constituted a compound or open fracture, but on the left leg the bones protruded through the skin. Q. But I mean since, in the healing process, have bones come out of both legs? A. Well, I wouldn't like to say positively about the right leg, but a part of the bone died on the left leg, and came out since. Q. How long did you continue to treat him, doctor? A. Practically all the time he was at the hospital. * * * He suffered a very considerable amount of pain, as is ordinary in cases of fracture of that character; suffered very considerable pain, for which it was necessary to administer anodynes, more particularly in the shape of morphine. Q. How long did these keen or agonizing pains continue? A. For several months. Q. Doctor, as a result of these injuries, how is his left limb affected as to its length? A. It's shorter, I judge, say, an inch and a quarter, perhaps a little more. It's fully that much shorter. * * * Q. Is there any use or flexibility of the ankle? A. The ankle is, as we call it, anchylosed, which means stiffened, and almost immobile. It can hardly be moved. Q. He says his wound was open within a week. What do you attribute that fact to? A. That some part of the bone is still being cast off—still inflamed—and is being thrown out by nature. Q. Will there ever be a time when he can use that foot, in your opinion? A. I think so; I think it will continue to improve. Q. What do you say about his recovering the entire use of it? Court: Speaking of the left leg? Mr. Taylor: Yes, sir; the left leg. A. The entire use of it, as compared with the limb if it had not been injured. Of course, his leg will never be better than it was before it was hurt, but I imagine that with the course of time the function—the use of the limb for practical purposes—will be restored. I don't wish that to mean that it will ever be like it would have been had it never been hurt. * * * Q. This anchylosis, will that continue? A. I think, as a result of use—experience—it will improve, but I don't think it will ever be as supple and movable as a normal limb. I think the nature of the wound precludes the re-establishment of the entire function of that joint." On cross-examination the doctor testified, in substance, that the leg would improve so that he could walk on it without cane or crutches, but that it would be weaker than a normal leg, and sensitive to changes in atmospheric conditions, and that he would never be able to jump or run actively on it. Dr. Stumberg, called for the defendant, testified as follows: "Q. State to the jury how you came to examine the leg. A. The young man came into the office of Dr. Mudd and myself, and Mr. Taylor came with him, and they asked me to examine the leg. Dr. Mudd came in, and we examined the leg. Q. Now, from your examination of that leg, doctor, what would you say in regard to this young man retaining the use of that leg? A. Of regaining? Q. Regaining, yes. A. Well, I found in the case a compound fracture in the right leg, which has...