Stubbs v. Kansas City Terminal Ry. Co., 24860

• Decision Date: 01 April 1968
• Docket Number: No. 24860,24860
• Court: Missouri Court of Appeals
• Parties: William G. STUBBS, Respondent, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant.

Page 257

427 S.W.2d 257

William G. STUBBS, Respondent, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant.

No. 24860.

Kansas City Court of Appeals, Missouri.

April 1, 1968.

Sam D. Parker, W. M. Stapleton, Daniel M. Dibble, Kansas City, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel, for appellant.

Lee E. Wells, Kansas City, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, of counsel, for respondent.

HOWARD, Presiding Judge.

This is a suit for personal injuries brought under the Federal Employers' Liability Act by respondent which resulted in a verdict for respondent in the amount of $8,500.00. Appellant filed a motion for new trial which was by the trial court overruled on condition of remittitur of $2,000.00 with accrued interest thereon; alternatively, the trial court ruled that if such remittitur was not made, the motion for new trial would be sustained 'on the ground that the verdict was the result of bias, passion and prejudice on the part of the jury against the defendant in favor of plaintiff.' Respondent did in fact make remittitur as required and the court then entered judgment for respondent in the amount of $6,500.00. Appellant has duly appealed to this court. We shall refer to the parties as they appeared below.

Plaintiff's duty as an employee of defendant was to handle sacks of mail and operate what is called a mail coding machine. These machines had been in use by defendant only a short period of time and plaintiff had been operating the machine for only about a month at the time of his injury. In the operation of this machine plaintiff would take a full mail sack from a conveyor belt at his side and place it in what is called the 'hopper' of the machine. He would then push certain buttons on the doing board which would determine the route the sack of mail would take on its way to its destination. When this was done, the mail sack would fall down through the hopper onto a conveyor belt which would take it on its way. In some instances, the sack fell directly onto the proper belt and was carried away. In other instances, a shuttle in the lower part of the machine would cross over thereby pushing the mail sack onto a different conveyor belt to go on its way in a different direction. There were several of these machines in a line beside the conveyor belt which brought the mail sacks to the various coding machines.

On the day of the accident this assembly line operation and the conveyor belt which brought the mail sacks to the coders had been shut down because of a jam. During this lull in operations, plaintiff leaned back against the machine behind him and placed his feet in an opening in the lower part of the machine to rest his legs and feet. When the operation started up again plaintiff stood on one foot and left the other foot resting in the opening in the machine. He placed a mail sack in the hopper, pressed the appropriate buttons on the coder and the mail sack fell down through the hopper. The shuttle moved across to push the mail sack onto the second conveyor belt and in doing so caught plaintiff's foot against the side of the opening. Plaintiff attracted the attention of a fellow-worker at the next machine who, when he saw what had happened, ran to the end of the line and closed two air valves so as to release pressure on the machines and permit defendant to extract his foot. The power for this operation was compressed air. Plaintiff was taken to the hospital where he was x-rayed, then was taken to his home. Medical testimony showed that he had a crushing injury to the front part of his foot, two toes were broken and one toe was cut. There was some bleeding.

The machines were lighted from above and the lower part of the machine was in shadow. Plaintiff testified that he had never had occasion to look at or examine the lower part of the machine or the opening therein where his foot was injured. When he was standing in position to operate the machine he could not see the opening. He knew that the shuttle moved across in the lower part of the machine but did not know that it moved across the opening or so close to the front of the machine as to catch his foot. He did not realize there was any danger in having his foot in the opening while the machine was operated.

After two weeks plaintiff tried to go back to work but could not wear his shoe and remained home for the third week. Plaintiff testified that he went back to work at the end of the third week because he had to support his family even though he had much pain. For a while after he returned to work, he was not put back on the coder but worked at loading and unloading mail sacks on and off the trains which involved moving trucks loaded with mail and generally moving about the station on his feet. At the time of trial he was again working on the mail coder as before the injury. Plaintiff testified, and he was corroborated by his daughter, that for at least 18 months after the injury he suffered severe pain every day and after being on his feet for an 8 hour day, his foot would be swollen and irritated and when he returned home he would soak his foot in water, his daughter would massage it and they would use a vibrator thereon. This painful condition gradually decreased and at the time of the trial some 4 1/2 years after the injury, plaintiff complained of only occasional pain. At the trial the medical testimony was that the fracture of one toe had 'healed and in satisfactory position, although there was some angulation at the fracture site.' The x-ray taken some 3 years after the accident did not reveal the fracture of the other toe although the x-ray taken immediately after the injury did show the fracture of both toes. The doctor testified to 'residual stiffness in the toes of the foot, particularly in the great toe or the big toe or first toe.' As to the continuation of pain long after the injury had healed, the doctor testified that plaintiff had a condition known as 'metatarsalgia, which means pain in the forepart of the foot in the region of the metatarsal bone due to injury which never quite gets well.' Plaintiff has a low arch in the front of his foot (the metatarsal arch) as the result of the crushing injury to the foot. The doctor stated 'as he works on his foot in hurts after a time.' He also testified that the crushing injury to the foot resulted in 'an extremely painful condition that lasts for many, many months, known as Sudeck's neurovascular disturbance. It is very common and an extremely painful condition. * * *' As to the neurovascular disturbance, the doctor stated 'Recovery after a prolonged period of time is almost always had, or almost always comes about.'

Plaintiff had loss of wages from being off work and from his inability to work available overtime in a gross amount of slightly over $900.00. Defendant makes no issue on this appeal as to the correctness of this amount.

Defendant complains that the trial court erred in overruling the motion for new trial on condition of remittitur when it found that the verdict was the result of bias, passion and prejudice. Defendant contends that remittitur is authorized only in a situation where mere excessiveness of the verdict exists but that where the excessiveness is the result of bias, passion and prejudice it cannot be said that such bias, passion and prejudice affected the amount of the verdict only and did not affect the determination of the issue of liability. See Artstein v. Pallo, Mo., 388 S.W.2d 877. Defendant argues that where bias, passion and prejudice exist the defect cannot be cured by remittitur but that a new trial must be granted. With this general contention we agree. This distinction between simple excessiveness and excessiveness which results from bias, passion and prejudice is well set out in Skadal v. Brown, Mo., 351 S.W.2d 684, l.c. 689, where the court said:

'* * * This Court recognizes a distinction between a verdict which is excessive and a verdict which is so grossly excessive as to indicate bias and prejudice. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157, 159; Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304; Taylor v. St. Louis Public Service Co., Mo.Sup., 303 S.W.2d 608, 612. A verdict which is excessive is one in which the jury made an honest mistake in weighing the evidence as to the nature and extent of the injury and in fixing the damages and awarded a sum disproportionate to the amounts usually awarded for comparable injuries under the rule of uniformity. Such a mistake can be cured and corrected without a new trial, by requiring a remittitur of a portion of the amount awarded. A verdict which is so grossly excessive as to indicate bias and prejudice is one in which the jury was guilty of misconduct by fixing an excessive figure as a result of bias and prejudice engendered during the course of the trial. Such misbehavior vitiates the entire verdict, not only as to the amount of the award, but also as to the determination of liability, and cannot properly be corrected by a remittitur, Dye v. St. Louis-San Francisco Ry. Co., 361 Mo. 331, 234 S.W.2d 532; Knight v. Swift & Co., Mo.Sup.,...