| Mo. Ct. App. | Mar 23, 1896
In May, 1889, plaintiff’s leg was broken and he employed the defendants, who were practicing physicians and surgeons, to attend him professionally. Bad results followed and plaintiff brought this action for malpractice. At the first trial, plaintiff recovered a judgment for $2,000, which, on- appeal to this court, was reversed and remanded because of error at the trial, 53 Mo. App. 393" court="Mo. Ct. App." date_filed="1893-04-03" href="https://app.midpage.ai/document/carpenter-v-mcdavitt--cottingham-6617336?utm_source=webapp" opinion_id="6617336">53 Mo. App. 393. On a second trial in the circuit court plaintiff had a verdict and judgment for $1,500, and defendants have prosecuted a second appeal.
When the case was here before it was reversed and remanded for a new trial, because of the too general character of the instruction on the measure of damages. It was, however, suggested that some other instructions were not as specific as.they should be. But, as already stated, the material error that prompted our action was the failure of the trial court to point out the elements of damage to be considered by the jury in fixing the amount of the verdict. The other in structio ns were in the main approved.
On the record as now presented, we find the instructions substantially the same as at the first trial, except some slight modifications made to meet the views of this court relating to instructions numbered 1, 2, and 3, and except, further, that the instruction as to the measure of damages contains a recital of various elements of damages proper to be considered by the jury.
It is now the well settled rule that when a cause is appealed the second time, questions of law decided at the former hearing will be considered as no longer open
In the ninth instruction relating to the measure of damages, some expressions are used which were, perhaps, improper; at least, they were beyond the limits of our former opinion. For example, the jury was told to consider as an element of damage, the ability of the plaintiff to labor and attend to his affairs and to pursue the course of life he had marked out for himself and might otherwise pursue; and also his situation and condition in life or society. The use of these italicized words were unnecessary and perhaps improper. But under the facts of this case, we think the error was so unsubstantial and manifestly harmless that we ought not to reverse the judgment for that reason.
The abstracts contain mere excerpts of the testimony ; there is no pretense of embodying therein the entire evidence, and hence we can not consider the points suggested relating to the sufficiency of the evidence to make a case for the plaintiff, or that there was or was not evidence of this or that fact upon which certain instructions were predicated.
Neither can we condemn the verdict on the alleged ground of excessive damages. If defendants are responsible for the condition of the plaintiff’s leg (and the jury so found) then the sum of $1,500 does not appear an unreasonable compensation. The court and jury had the young man before them; their opportunities for observation were superior to ours and we must therefore yield largely to their judgment and finding. The verdict at the first trial was for $2,000. Judgment affirmed.