Wise v. Rubenstein

• Decision Date: 04 February 1930
• Docket Number: No. 20906.,20906.
• Parties: WISE v. RUBENSTEIN.
• Court: Missouri Court of Appeals

24 S.W.2d 203

WISE v. RUBENSTEIN.

No. 20906.

St. Louis Court of Appeals. Missouri.

February 4, 1930.

Appeal from St. Louis Circuit Court; Hon. H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Florie Wise against Moses Rubenstein. Verdict for plaintiff, and from an order granting a new trial on ground that damages were inadequate, defendant appeals. Affirmed.

Kelley, Starke & Hassett, of St. Louis, for appellant.

Joseph F. Coyle and Earl M. Pirkey, both of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $300. The court ordered the verdict and judgment increased to $1,200 as a condition to denying plaintiff a new trial. Defendant declined to accede to such increase, and the court thereupon granted plaintiff a new trial, on the ground that the verdict was against the evidence, in that the damages awarded were grossly inadequate. Defendant appeals.

Defendant owned an eight-family apartment building at 1116 North Twenty-Second street, St. Louis. There were four apartments on the ground floor, and four on the second floor. The apartments on the second floor opened onto a common porch. Plaintiff was a tenant of one of the second floor apartments. The porch was used in common by the four families who were tenants of the second floor apartments, and was provided for their common use by defendant. On May 25, 1927, plaintiff was out on this porch, hanging out clothes, when two boards of the floor of the porch gave way, and she fell down through the opening with one leg to her hips, and was thereby injured. The boards which gave way were decayed and insufficient, and had been in that condition for a long time before the injury. The evidence as to defendant's liability is ample and undisputed. The evidence on behalf of the plaintiff shows that she suffered a serious and permanent injury to her left hip.

Plaintiff testified that her ankle was hurt, and that her left side and back were badly bruised; that she pulled herself out of the hole where she fell, and crawled into the house on her hands and knees; that she was in so much pain she could not walk; that she crawled into the kitchen, and from there to the front room, and pulled herself up by a chair and got into bed; that a doctor was called, who treated her; that the doctor visited her every other day for about three weeks; that the fourth week she was up and around the room, but did not attempt, for a couple of weeks after that, to get out of the house, because her limb was so weak she was afraid to trust herself to walk; that it was about six weeks before she got out of the house; that that was about two weeks after she got up; that she was working, at the time she got hurt, for Mrs. Alcee Stewart, at 5646 Kingshighway boulevard; that she had been working for Mrs. Stewart all that year and a part of the year before regularly from one and one-half to two days each week; that she did extra work for Mrs. Zeiser; that she did not go back to work for Mrs. Stewart after she got hurt; that she did not start to work again until about January or February, 1927; that the first place she worked was for Mrs. Newell, for a half day; that about September, 1928, she worked regularly for about a day and a half per week for about two months; that at the time of the trial, which occurred on December 18, 1928, she was working one day every two weeks; that she was not able to do anything prior to January, 1928, because she still suffered with her left hip and was not able to stand for any length of time; that at the time of the trial she was still not able to stand for any length of time; that standing caused the hip to ache; that she could not bear her weight like she ought on her left foot; that she usually rested principally on the right foot, because the hip still hurt when she stood on the left foot or walked; that when she did anything like wringing, washing windows, or anything that caused her to use her arms very much, or anything like ironing, that caused aching in the left side; that when she was on her feet a couple of hours the hip hurt terribly; that at the time of the trial it did not seem to be getting any better; that whenever she stood or walked it hurt just the same; that previous to her injury she had always been used to hard work, such as laundry work, and worked regularly; that she always worked whenever she could get anything to do.

Plaintiff's physician testified that he treated plaintiff for her injuries, and that she was still under his care at the time of the trial; that she was at the time of the trial still suffering with stiffness and soreness of the left hip, and was very nervous; that the condition of her hip was a handicap to her in working and doing manual labor; that her ability to work was affected, on account of the condition of her hip, about 60 per cent.; that this condition of the hip would in all probability cause pain in the future, and that the condition is permanent; that he was first called to treat plaintiff on May 25, 1927; that he found her in bed in her apartment, and made an examination of her; that he found she had a sprain in her hip, a wrenched back and probable fracture of the eleventh and twelfth left ribs, and bruises and discoloration over the parts named.

Mrs. Alcee Stewart testified that plaintiff had worked for her prior to May 25, 1927, and that she was strong, capable, reliable, and...