90 Kan. 282 | Kan. | 1913
The plaintiff sued for damages alleged to have been caused by the sudden starting of a car while he was in the act of alighting. The jury found that according to thp evidence he suffered external injuries as a result of the alleged accident, and that they consisted of “bruises on neck, shoulder and side, duration about one week,” and that the injury-was caused by starting the car before the plaintiff got off. They allowed nothing for pain and suffering or for permament injuries, but awarded $30 for treatment and $20 for medicine. Plaintiff filed a motion for new trial based, among other things, upon misconduct of the jury, passion and prejudice, misunderstanding or misconstruction of the instructions, and upon the ground that the verdict was contrary to the evidence and inconsistent with the findings. The defendant moved for judgment on the findings, which motion was denied, and a new trial was granted. The defendant appeals and contends that the court invaded the province of the jury in granting a new trial and erred in denying the motion for judgment.
It is argued that the jury did not believe or have evidential grounds to believe that the plaintiff was physically injured. There was testimony, however, that while in the act of getting off the car the plaintiff was suddenly thrown against the iron railing, striking on his left side, was then pitched out on the platform where he' struck his left side, hip and shoulder; that when he became conscious he was led to a seat until he could take a car for his home; that he was confined to the house five days, suffered great pain, and that various remedies were used as prescribed by a physician, who called about five times and who testified that he examined him several times and prescribed for him for about two or three months but regarded the injury as temporary. There was considerable evidence showing
The defendant urges that according to the findings the jury regarded the bruises so slight that no damage resulted therefrom, and therefore they must have been too slight to justify an allowance for medicine or treatment. The fact remains, however, that the jury expressly found that by the negligence of the defendant, plaintiff, according to the evidence, suffered external injuries, consisting of bruises on neck, shoulder and side, of about one week’s duration. The failure to allow anything for pain and suffering was as inexplainable as the allowance for treatment and medicine, and had the defendant asked for a new trial instead of a judgment on the findings it might well have been granted. As said in Willis v. Skinner, 89 Kan. 145, 130 Pac. 673, when the special findings are inconsistent with one another, some showing a right to a verdict and others the contrary, the case is left in the condition of being really undecided. Here the answers are not only inconsistent with one another but some of them with the general verdict, showing that the case has n‘ot in any real or proper sense been actually decided.
The order granting a new trial is therefore affirmed.
