166 Mo. 435 | Mo. | 1902
I.
This the second appeal in this case. When the case was here before, the judgment of the circuit court in plaintiff’s favor for $15,000 damages was reversed for the errors in law then pointed out. [Chitty v. Railroad, 148
On the former appeal it was held that a party can not count upon one cause of action and recover upon another, even though such cause of action would warrant a recovery if properly pleaded. And because the plaintiff in this case predicated his right to recover upon a collision between two trains of the defendant, it was held that an instruction was erroneous, which authorized a verdict in his favor if he received injuries while attempting to escape from the train when he had reasonable cause to apprehend a collision and when the danger thereof was, and he believed it was, imminent and impending, and, e converso, that it was error to refuse an instruction asked by defendant, that if he was so injured, and not from the collision as his petition charged, the verdict must be for the defendant. It was further then held that the petition stated a cause of action, that there was evidence sufficient to support the allegations of the petition and that the first instruction given upon the theory of the petition was proper.
TJpon the trial anew, the errors pointed out when the ease was here before were avoided. The plaintiff adhered strictly to the allegations and theory of his petition, and at his instance the court limited his right to recover solely to the cause of action pleaded. The court gave two instructions asked by defendant to the effect that the plaintiff could not recover if he received his injuries by jumping from the train and not from the collision of the two trains, thus -emphasizing the instructions given for the plaintiff, limiting his right to recover •to the collision. The case was, therefore, tried in accordance with the principles of law announced by this court on former appeal.
There is sufficient testimony to support the allegations of the petition and the theory of the plaintiff. There is also evi
Upon this conflict as to the facts, the court submitted the case to the jury upon proper instructions asked by the plaintiff limiting his right to recover to the finding of the fact to be that he was injured by the collision, and upon proper instructions asked by the defendant also limiting his right to recover to the finding of the fact to be that he was injured by the collision, and negativing his right to recover if the jury found the fact to be that he was injured in consequence of jumping from the train to escape injury from the impending danger of a collision. The jury found for the plaintiff, thereby necessarily finding the fact to be that the injury was received as plaintiff contended and against the defendant’s contention. This is an action at law, and this an appellate court, and the practice is settled that under the conditions here presented this court will not disturb the finding of fact by the jury in plaintiff’s favor, as it would not have done if the jury had adopted defendant’s contention and returned a verdict in its favor. The difference between the parties was simple and clear, and there was evidence sufficient to support a verdict either way. This being so this court will not interfere with the finding of the facts as to the cause of the injury.
The defendant, however, still contends that there was a clear departure between the plaintiff’s allegations and his proofs. This presupposes that the fact is that the plaintiff was injured by jumping and not by the collision. As pointed
The defendant complains of a modification of its sixth instruction, which was as follows:
“The court instructs the jury that the plaintiff charges, in his petition, that there was a collision between the caboose car in which he was riding and another car on defendant’s road, and that by the shock of said collision of cars, the sliding door at the side of the caboose was caused to fly shut suddenly and with great force, and plaintiff, being thrown forward by the concussion, had his right leg caught between the door and' the door jamb and the leg crushed, and that, upon the rebounding of the door, plaintiff was thrown with violence from the caboose, and sustained injuries and bruises upon his body and chest; and, unless you find from the evidence that by the shock of said collision plaintiff was thrown forward from his seat in the car and had his right leg caught between the door and the door jamb, then you.must find a verdict for the defendant.”
The court struck out the words “from his seat’” and gave the instruction. There was no error in so doing. There was no allegation in the petition that the plaintiff was thrown forward “from his seat.” The allegation in the petition is: “that, by the great shock of said collision of -cars, the heavy sliding door at the side of said caboose, which was open at the time, was caused to fly shut suddenly and with great force, and plaintiff, being thrown forward by the concussion, had his right leg caught between said door and the door jamb and the same was crushed between the ankle and the knee.”
The ease was tried in strict accordance to the law as declared by this court on former appeal, and no error of law is apparent from the record.
This leaves for consideration only the contention that the verdict is excessive. The plaintiff was fourteen years of age when the injury was inflicted. His prior earning capacity is not shown. His present and future earning capacity is not definitely shown, but sufficient appears to make it clear that it is not entirely destroyed, for he has since worked scaling logs and keeping books. He was confined to his bed in the hospital some six weeks, and was compelled to use crutches and remain at the hospital for several months. At the time of the second trial, some seven years after the injury was1 received, he still suffered pain, and his wound was not entirely healed, but periodically, every few weeks, suppuration ensued, and he had to keep the leg constantly bandaged. The injury was a compound comminuted fracture, that is, the bone was broken in more than one place and protruded through the soft parts or skin. The injured leg is shorter than the other, but by putting cotton in the shoe the plaintiff is able to walk, by the aid of a stick, without any particular trouble.
Counsel for the defendant have collated many cases, in which verdicts for injuries to the leg or foot have been set aside as excessive, some of which are as follows:
In Waldhier v. Railroad, 87 Mo. 37, both feet were amputated. The verdict was for $25,000, and it was affirmed upon the plaintiff remitting $5,000.
In Whalen v. Railroad, 60 Mo. 323, one foot was crushed and one leg 'amputated. The verdict was for $8,000, and it was allowed to stand, although the court said: “We would have been better satisfied, under all the circumstances, if the amount had been less.”
In Adams v. Railroad, 100 Mo. 555, both bones of the ankle were broken. The verdict was for $10,000, and it was held to be so excessive as to indicate prejudice, and accordingly the judgment was reversed.
In Nicholds v. Crystal Plate Glass Co., 126 Mo. 55, the bones of the plaintiff’s ankle were broken; he used crutches for five or six months. At the time of the trial he had to use an iron brace and a cork-bottom shoe, and his foot was turned outward and less than half of the sole of the foot rested on the floor. The verdict was for $8,666. The court said: “We can not escape the conclusion that the judgment is excessive.” Accordingly a remittitur of $3,666 was ordered by this court, and the judgment allowed to stand for $5,000.
In Furnish v. Railroad, 102 Mo. 438, the injury was to the spinal cord, and she was not able to walk and had only left the house once after the accident, and would be a cripple for life. The verdict was for $15,000. This court ordered a remittitur of $5,000, and allowed the judgment to stand for $10,000.
In Gurley v. Railroad, 104 Mo. 211, the fleshy portion of
In Burdict v. Railroad, 123 Mo. l. c. 236, the injury was the loss of the lower part of an arm. The verdict was for $12,500. The trial court ordered a remittitur of $2,500. This court held the judgment (for $10,000) excessive, and a further remittitur of $3,000 was ordered, and the judgment allowed to stand for $7,000. [Ibid. 1. c. 243.]
Erom these precedents it appears that no verdict for $15,000 has been allowed to stand where the injuries were not more serious and the earning capacity of the plaintiff more seriously impaired than appears to be the fact in the case at bar. We are constrained to hold that thewerdict in this case is excessive, and that the plaintiff will be adequately compensated and the defendant sufficiently punished if the judgment is reduced to a sum, which capitalized, will furnish the plaintiff a reasonable support for life.
The power of this court to order a remittitur has been fully discussed. Eor many years the power was exercised without serious question. This power was first doubted in Gurley v. Railroad, 104 Mo. l. c. 233, by Division No. 2. Afterwards, in Burdict v. Railroad, 123 Mo. l. c. 241, the decision in Gurley v. Eailroad in this respect was questioned and the power to order a remittitur expressly affirmed by the majority of this court, In Banc. Thereafter, in Rodney v. Railroad, 127 Mo. 676, the majority of Division No. 1, following the Burdict case, ordered a remittitur, but when the case was decided In Banc, a majority of the court held that this court has no power to order a remittitur. The power of this court in this regard was again discussed in Division No. 1, when this case was here on former appeal, and the majority of the
The cases which deny the power, concede the right of this court to attain the same end by the indirect route of setting aside judgments on the ground that they are, on their face, the result of passion, prejudice or misconduct of the jury, until finally some jury is thus coerced into returning a verdict which this court does not think is excessive. As long as the power is conceded to set aside a verdict otherwise proper, solely on the ground that it is excessive, it must be acknowledged that the proper, expeditious and economical administration of the law requires the error to be corrected in a direct way by remittitur instead of by the indirect way above pointed out. Experience has demonstrated not only the propriety but the necessity for so reaching a just and speedy correction of an otherwise unobjectionable verdict. For these reasons we hold that the power to order a remittitur in such and like proper cases exists, and because we find no'other error in this case, and because we are constrained to conclude that the verdict in this case is excessive, it is hereby ordered that upon the plaintiff entering a remittitur of five thousand dollars of the principal of this judgment with the clerk of this court within thirty days from this date, the judgment remaining for ten thousand dollars will be affirmed, otherwise the judgment will be reversed and the cause remanded solely on the ground that the judgment is excessive.