106 Neb. 767 | Neb. | 1921
William R. Dailey sued to recover damages for personal injuries sustained by reason of defendant’s alleged negligent operation of a passenger elevator in its 17-story office building situated at Farnam and Fifteenth streets in Omaha, known as the Woodmen building. He recovered a verdict for $52,000. On defendant’s motion a remittitur of $1,069 was filed, that sum representing certain alleged medical and hospital expenses which plaintiff was unable clearly to establish. Judgment was thereupon rendered in plaintiff’s favor for $50,931, and defendant appealed.
■ On the part of plaintiff the evidence tends- to show that July 19, 1919, while he was in the prosecution' of his business as a salesman and solicitor for an Omaha stationery company, he went to the Woodmen building at 10:30 in the forenoon to call upon his employer’s customers, and while he was stepping into one of six passenger elevators operated by defendant, and before gaining an entrance, the conductor started the car at a high rate
On. this feature of the case plaintiff’s testimony in substance is that when he approached the car he paused a moment to allow a lady to enter, and that he immediately followed. He testified: “I proceeded to.enter it; got my right foot in, and was in the act of bringing the left foot in, when the elevator' started up with a sudden jolt, and threw me down, just simply threw me right down, theii slipped out of the elevator, the elevator door’s still being open, feet slipped out, the elevator moved upward, arid both of my feet slipped off, curled in under the elevator, and dropped into the pit.” Plaintiff further testified that the door of the car was open when he started -to enter and the elevator was standing still. He said there -was no car starter in the corridor that day when the accident happened, though he had seen one there when in the building on former occasions.
There is evidence tending to prove that defendant employed an unskilled, inefficient and inexperienced young lady, a novice, to operate the elevator car, and that the accident was caused by her negligence in starting the car before she closed the door and while plaintiff was in the act of stepping inside, and that she failed to stop the car immediately upon plaintiff’s failure to gain an entrance. On this point she Avas called by plaintiff as a Avitness and testified that the day of the accident Avas the first time she- operated the car alone; that the operators were supposed to close the doors of the cars before starting; that she started the car on the ti*ip in question at a high rate of speed without closing the door; that she estimated the
With respect to plaintiff’s injuries the. physician who first attended him immediately after the accident testified : “I found distortion of the left foot, due to a. fracture at the junction of the lower and middle third of the left tibia and fibula; an incised wound about one and a half inches in length. Q. Go ahead. A. And one inch in breadth at the middle third of the inner aspect of the right tibia; an abrasion of the skin over the lower and inner portion of the right patella; * * " a slight amount of rigidity over lower left abdomen; an incised wound just below the posterior and anterior superior spine; no fracture of the spine, in my opinion; skin abrasion on the right jaw; skin abrasion on the right nipple; skin abrasion on both hands and the left forearm just beIoav the elbow on the anterior aspect; abrasion of the skin of the back, extending from the middle of right scapula down the entire length of the back to the gluteal muscles; scalp wound about the size of half a dollar, just below the occiput. Q. Just state to the jury what the appearance of the left leg was at the time you examined Mr. Dailey. A. The left leg was distorted, turned outward, due to a fracture of both bones at about the junction of the lower and middle third of those bones. Q. That is, the left foot was turned outward beginning at a point abgut two-thirds of the distance below the knee? A. Yes, sir. Q. What did that disclose in the way of bone injury? A. A fracture. Q. What sort of a fracture did you discover this .to be? Á. Comminuted fracture. * * * Q. What did the rigidity of the left side of the abdomen indicate to you, if anything? A. Indicated severe trauma, in my opinion; at that time it was significant of hemorrhage. Q. Internal hemorrhage? A. Yes, sir. Q. Did the patient, Mr. Dailey, seem to be suffering from shock at that time? A. Yes, sir.” The doctor further
Two surgeons were called in consultation. They testified that they assisted in the examination of plaintiff, using an X-ray as an aid. With respect to the injuries, their evidence substantially corroborates that óf the physician whose evidence is detailed herein. One physician testified that plaintiff was ill about a month from an attack of pneumonia that he contracted because of low physical resistance that resulted from his injuries. This doctor said that he suffered great pain while under his care; that he lost weight and became emaciated; that he was delirious at intervals and could not speak above a whisper. The hospital nurse who had him in charge from July 19 until September 30 testified that when plaintiff Avas brought into the hospital he had symptoms of shock, and syncope, and had bruises all over his body; that his back was “black and blue all over;” that his hands were cut up; that he was unable to move himself at all without great pain; that he could not sleep at night and was delirious at times and very weak; that when it was necessary to move him she did it with assistance; that he was placed on “a fracture- bed” with his left leg placed between sandbags keeping it in one position so that it could not be moved; that he suffered pain in the pelvic region; that the pelvic bone on the right side was very much bruised; that they administered opiaies to quiet him and to make him sleep; that they injected about three quarts of salt solution into his chest to sustain him and for a number of days they could not get his pulse; that in a case of this character in which there is weakness, the salt solution “is about the last resoi-t that we have.” She further testified that plaintiff “was bruised
Plaintiff’s wife testified that they had been married 15 years, and that he was in the employ of one firm during all of that time; that he had not known a day’s-illness during their married life; that she was summoned to his side about an hour and a half after the injury; that he recognized her, but could not speak; that he was not removed from the hospital for about two and one-half months; that when he arrived at his home he was placed in bed, where he lay propped up with pillows more, than a week; that he was unable to move himself; that his suffering was. severe in the back and pelvic region; that subsequently she obtained assistance of a neighbor and they moved him from the bed to a chair, where he could sit at a table for about a half hour, when he would become faint and dizzy and was compelled to return to his bed; that it was more than a month after he returned home before he could sit up all day; that his condition was such that he ivas unable to be clothed until January 1, and about that time the cast ivas taken off, and in the meantime he was taken to the hospital to have X-ray pictures taken; that when the cast was removed his leg ivas swollen from the top of the cast to his body; that when the cast was taken off she procured crutches for him and a splint was put on his leg for protection; that if his injured foot touched the floor he almost fainted and he was compelled to return to his bed; that at night he was unable to change his position in bed and she had to turn him over every half hour, and that at the time of the trial she testified that she had to change his position two or three times in the night; and that up to the time of the
Defendant denies that it was negligent. It introduced testimony tending to prove that plaintiff negligently attempted to enter the elevator after it began to ascend, and that to gain an entrance he seized the doors, which prevented them from closing, and tried to jump in while the car was in motion; that he missed his footing and in falling seized the floor of the car with his hands and from thence he dropped into the bottom of the elevator shaft; that the speed of defendant’s elevators in question is controlled by a device located in the building, and that the operator has only indirect control of the speed by signaling to the man in charge of the controlling device, and that the doors of the elevator close automatically when the car begins to rise. There is also testimony going to show that the operator of the elevator made certain material statements in a deposition soon after the accident that were less favorable to plaintiff than those she made at the trial and that were in part contradictory of those statements. She frankly stated that her recollection of the facts was better at the trial than it was soon after the accident. Her testimony though, as one of plaintiff’s witnesses, was a matter of credibility for the jurors. It may be said that, with respect to the scene of the accident and the occurrences immediately attending that catastrophe, the evidence of the witnesses who were called by the respective parties is in direct conflict. But that too was a question of credibility and the jury evidently accepted the version of plaintiff and rejected that of defendant, so that, under the rule, where there is sufficient evidence to support the verdict it will not be disturbed by us unless it is clearly wrong.
Plaintiff testified generally that the pain he suffered
The defendant contends that, even if it was guilty of negligente, the verdict is greatly excessive. It points out that plaintiff, who was 45 years of age when the accident occurred, had an expectancy of about 24% years, and that at the time he was earning $23 a week. Plaintiff, however, testified that he had “a commission arrangement on outside business.” .From the facts so pleaded by defendant it argues that in no event should the judgment be in excess of $13,000 or $14,000. Bower v. Chicago & N.. W. R. Co., 96 Neb. 419, is a like case wherein we refused to fix “with exact nicety just how much compensation should be paid.” We adhere to the rule there announced.
There is no fixed or exact rule known or recognized in our system of jurisprudence in which the same measure of damages for personal injury may be applied to all cases alike. As has often been said, much is left to the good sense and reason of the man in the jury box. Fishleigh v. Detroit United Ry., 205 Mich. 145; Southern R. Co. v. Bennett. 233 U. S. 80. The law gives to the jury the right to determine, the amount of recovery in cases of personal injury. That is, of course, one of its func
Union P. R. Co. v. Connolly, 77 Neb. 251, was decided by this court in 1906. We there held that a verdict of $27,500, recovered as damages for an injury resulting in the amputation of both legs about five inches below the knee, was not excessive. True, Connolly was only 31. and his expectancy was 33% years. But in his. case, appalling and horrible even to contemplate, the pain and suffering could hardly have been greater than plaintiff’s, whose injuries are in large part internal. Besides, it is obvious that Connolly’s capacity .to engage in useful and profitable employment would be even much greater than the plaintiff can hope to enjoy. The mental anguish and physical pain that plaintiff herein has suffered and that he continued to suffer, and the permanency of the injury, the humiliation, and the medical assistance and personal attention that his physical condition will require, and the decreased purchasing power of money, are all proper elements of damage for the jury to consider. Oases are cited in the Connolly case showing that, even in the first decade of the present century and prior thereto, when from a financial viewpoint the times were normal, substantially like verdicts, in the light- of the facts therein depicted, were held not to be excessive.
The evidence seems clearly to support the allegation of plaintiff with respect to the negligence of defendant. In
The judgment in. the present case is one of the largest
Defendant finally argues that, the jury having made an excessive award as compensation for medical and hospital expenses, proves that it was not guided by the evidence. A remittitur of the excess in the sum of $1,039 was filed by the plaintiff. In Kriss v. Union P. R. Co., 100 Neb. 801, we held that in such case where a remittitur is filed the error is cured. Defendant also makes complaint with respect to the giving of certain instructions. Upon examination we conclude that they do not present reversible error. The court did not err in overruling defendant’s motion for a new trial.
The Megeath Stationery Company, plaintiff’s employer, was made a party plaintiff, and is interested in the suit from the fact that it has paid to plaintiff compensation under the provisions of the workmen’s compeñsation law. The company asks that it may be subrogated to the rights of plaintiff to the amount of such compensation as it may have paid him in accordance with the provisions of the act in question. From the record it appears that the prayer of the company should be and it hereby is granted. It is therefore ordered that the Megeath Stationery Com
The judgment is that, if plaintiff Dailey files a remittitur in the sum- of $10,000 within twenty days, the judgment will be affirmed for $40,931. ■ Upon his failure to do so, a reversal will be granted and a new trial ordered.
Affirmed on condition.
