*1 Olе Jensen, Jensen Administratrix Estate (Nancy Jensen,
of Ole Joliet Elgin, v. deceased), Appellee, and Eastern Railway Company, Appellant. 47,068.
Gen. No. First District, Third Division.
March 12, 1957. Rehearing January 8, On 1958. publication January Released for 30, 1958. *3 Stevenson, Yelde & Conaglian, Hackbert, Chicago L. (Harlan Hackbert, and Dean A. Olds, of connsel) for appellant. Z. Samuel Grant, Bublick, E.
Meyer Edward (Edward Wolfe, Chicago Wolfe, counsel) for ap- pellee.
PRESIDING JUSTICE NIEMEYER delivered the of the court. opinion an
Defendant, carrier, interstate appeals from a for $50,000 entered in an judgment action under Federal Act Employers’ Liability U. S. A. (45 C. sec.
560a seq.) damages personal injuries for et to recover 51 alleged plaintiff, been
to have sustained employed by switching yard foreman defendant its Chicago, making up Illinois while train for South Gary, Indiana. engine
In this work the switch and cars moved puzzle, multiple, passed yard over switch slab yard outgoing in which served the slab trains which up, yard in made and the train which inbound were up. was in broken The switch constant trains were day. puzzle other Two switches were use 24 hours nearby. were in what one witness calls These switches place”; dirty dust from the blast furnaces “a plant, Company sand, as as Steel well United States collected on them. An oiler and cinders who dirt, coal Mondays through Fridays assigned was to worked day- daily. at a. He started 8 o’clock m., them clean day, light work each which first time, generally clean him until was to and oil the noon, took so in the intervals when as he able do switches injury alleged they in use. The were not July Thursday, 29,1954, about 9:40 o’clock occurred apparently standard time. a. m., age years at the time of the Plaintiff, about working 1930; for defendant in in 1952 started trial, resigned yardmaster; in 1953 and thereafter he was up regularly a as switchman or less more worked August early switch, he was familiar with the 1954; by moving an iron lever, 30 to 40 thrown which is *4 weighing long an iron ball and handle with inches about 30 ground through pounds end, from the at the opposite ground degrees on the arc of 180 an switch lifted the lever to an that he testified He side. tight; degrees; it was he angle he observed then of 45 lifting 4, it 5 or inches ball, on the hands used both go “sprung jerked like”; he let of me” and when “it original position; he to its it back and went lever the 560b region sharp pain He of his hack. the lower felt inspection and noticed the switch then made an of granulated slag, space and sand the cinders coke, breezе, point 4 inches between the switch of 3 or —a guide long guide “to the car into the rail 25 feet about you of track. let in”—and the rail the want to it track He also noticed they points,
rust the switch and that greased. had not been oiled or injuries theory is “his were sustained Plaintiff’s puzzle which the he to throw a switch when endeavored by the exercise or should have known knew, defendant ordinary in an and care, reasonable was unsafe of and inoperative of reason the fact that it had condition support properly oiled and maintained.” In not been Hanley, theory member switсh- this Clinton employee ing an of the defendant for 26 crew and plaintiff, morning years, testified that the called puzzle July he “threw lever of the pull real hard hard”; It threw was switch. up; dirty and full the switch dirt debris, lever sweeping slag, oiling needed and out in and and order good. He first noticed the switch was in that to work days July three four before 29th; condition about period reported fact he to the section in that fore- supervisor, Karpinski, track the roadmaster or man, inspector, yardmaster, safety general his reported shortly yardmaster; after the accident Karpinski, the switch to Steve, condition examination he redirect testified foreman. On section employer about a month after he had told right switch “throws all after it is accident greased out.” and cleaned oiled employees, Hanley to whom of defendant’s Three reported condition had switch, claimed any report positively he had not made testified employees remaining they testified two The had them. Hanley. any report by However, recollection as no 560c *5 reply defendant its brief that admits “the schedule daily cleaning warrants the inference that daily,” reports, any, switch neеded be cleaned if condition the switch are immaterial. Kirill assigned puzzle yard Evansov, who was to oil the slab nearby, switch and the two switches that testified he working could remember where he was oiler as July July during 1954; 1954 he started to work daylight at o’clock, 8 would commence time, on the yard puzzle switching slab switch if there was no prevent it; it takes four about hours to clean and oil the three switches. On cross-examination he testified morning o’clock in the that between 9:40 10 puzzle him to foreman told clean the switch; told him foreman to clean switch at o’clock in 8 morning he it cleaned at only o’clock; he did not again it he o’clock; at 10 clean cleaned it once be- depends upon or tween 8 and 11 o’clock—it switching. Karpinski, yardmaster, assistant whose of- puzzle feet from the fice was about 20 slab switch, came to his testified office about 9:40 morning he throwing and said that hurt his back puzzle Karpinski, lever; he, sent hospital and then went over to the switch and threw pressure you had to use little to throw it; he did it— any anything wrong or not see defects with the switch ; any- debris, not notice cinders or did sand neighborhood thing kind in the switch points; section oil he had a man the switch abоut ten operated after he the switch. later, minutes oiling necessity daily The switch con testimony The of the oiler as whether had ceded. attempted switch before to throw oiled the conflict the evidence is uncertain. There is direct immediately switch before as to condition of the Karpinski herein. and at the time the occurrence plaintiff reported immediately after had it oiled 560d *6 Karpinski, injured had thrown his and he, had back lie oiling was done in order to switch. Whether proper working put in was a condition, the switch jury. question not err in The court did refus for the notwithstanding judgment ing fоr defendant enter New York R. Co., v. Cent. 402 the verdict. Williams Ill. 494. in contends that cases under the
Plaintiff Employers’ Liability Act the state courts of Federal general prac with their in accordance cannot, review weigh and and reverse remand case the evidence tice, for a new trial against the mani
because verdict weight We have decided this of the evidence. fest adversely question in Bowman v. Illinois Ill.App.2d pending now Co., 182, 200-203, R. Central Supreme appeal In addition to what in the Court. call attention to case, in we v. we said Corcoran Chicago, City Ill. where the cоurt discussed early grant practice common law courts in of the the ing instant case we cannot In the substi new trials. jury question judgment on the for our tute contrary damages liability. conclusion as to the A requires further examination of the evidence. awarded reported Immediately that he his testified Plaintiff company yardmaster, injury to the then went pain walking had in the hospital, blocks; about two legs, region and in his more his back lower leg; right leg him, a doctor examined in the left than pain; pills gave taped him to relieve his and his back day, about half an remainder he worked August 8th; he did not work until thеreafter hour, try any place to obtain em- that and did after go- ployment; ing treated defendant’s doctors, he was day receiving hospital every other heat then treatments the lower vibrator treatments September part 14,1954, when he was his back until given discharged treatment and from further back- slip. to-work
560e In the August middle of 1954 he went to see Dr. Willard Shahat; he saw him at least twice a month from that time until June 7,1955; the doctor examined him and sent him to X-rays; Dr. Zeitlin for Dr. Shahat ordered a gave pills brace for his back, him to relieve pain his pad and had him use a heat on his back and a bed board; he went to X-rays, Dr. Zeitlin twice for August again once in 1954 and a week before the trial; company he did not tell the seeing doctor that he was Drs. Shabat and Zeitlin. Dr. Shabat died some the summer of 1955. Plaintiff went to Dr. Joshua time Spiegel August suggestion 1955 at the of one of attorneys; Spiegel he told Dr. that he had a law *7 pending; Spiegel suit he knew that Dr. was to make report lawyer a findings; Spiegel his as to his Dr. wearing gave him him advised to continue the brace, pills, walking some told him not to do too much or bending any or violent other than exercise; the advice given Spiegel give Dr. did not him, him treat- go hospital had ments, never him to a and sent never anywhere X-rays; plaintiff him Spiegel for saw Dr. being preceding ten last in times, the time the week any change the trial; he has not noticed in his condi- during tion the time he was under treatment Drs. Spiegel; back and the brace that he Shabat wears re- pain pains; they in back, the but still has lieves diminishing; only are and are not the severe treatment taking of the trial he was at the time was the use of the pad, and the back brace; heat the bed board he was pills. pain taking still an associate Dr. inter- Zeitlin, of Silver,
Dr. Louis preted X-rays taken in the lаtter’s office. He tes- right slight a scoliosis of films showed tified the spur- upper a minimal sacrum, the lower lumbar ring the fourth lumbar vertebra and a arthritis on or posterior portion malalignment of to or sublnxation —the being posterior somewhat vertebra fifth lumbar
560f portion upper of first sacral vertebra; produced by could subluxation have been that trauma; X-ray very minimal in the arthritis films is a com- persons finding years age in mon who have physical life; led an active bending the lateral scoliosis, or spine, slight, right, moderate to the frequently pain-free persons; in seen normal, precеding (Dr. Spiegel) witness Joshua said that the displacement slight posterior the fifth lumbar ver- may congenital origin, the sacrum be in tebra above disagree can’t with I think from the films him”; “I only congenital; I know from the that it is not films present present 1954; and it is at that was this only guessing long- be how I would as to time, 1956; prior may film that condition existed; to the 1954 have say. want to I wouldn’t August Spiegel examined
Dr. Joshua patient had been doctor knew re- 1955. The lawyer, from him the and assumed ferred to pending had law claim been fact that a suit upon testify might be called filed and law inquired when he he had that mind suit; complaints pain. He madе re- as to his plaintiff’s attorney. port Plain- examination to of his pain complained lower in the back which tiff hip, leg through right thigh, radiated down ankle into *8 accompanied right and was toes, the legs, particularly tingling in in the and both numbness plaintiff Nafziger, gave right Fabere doctor the foot; responses Lasegue to the first two tests the test; and patient Lasegue the lies flat in test the normal; were leg and flexed on is elevated the and the a table on patient sign positive body; when the com- is elicited along pain plains the course of the sciatic either of hip, thigh, or in behind the of the the back nerve, on the test back; lower the the middle of leg- degrees being (the pain fixed developed at 100 560g degrees beyond upright angle) tbe in the of back the right thigh, going into the middle of back; the the presence pain of is the determined statement of patient pain, secondly by the feels the the tensing hamstring thigh of the muscles of the as it is upwards; brought tensing hamstring the of the mus- voluntary patient; cles is under the control of the possible it while for a clever actor to fool him, he, the doctor, did believe could fool response; findings him with a false his were that the mоderately para- normal lumbar lordosis was the lost; vertebral muscles either side of the lumbosacral spasm; spine percussion were in with a rubber ham- tips spinuous processes, spines mer the of the over fourth and fifth lumbar and the first sacral spines present parts elicited tenderness not in other body; no there was difference in the measure- right legs of, thigh ment and left at spine and the flexion the lumbar calf; was limited in bending turning backward and forward and any side; he instructed to avoid acute back protracted bending, weight lifting any heavy or walk- straining ing, standing kind or and told him to straightbaek pоssible only sleep chairs and if sit springs; diag- the mattress and on a board between rupture plaintiff’s condition was a nosis the in- either between the fourth disc, tervertebral fifth the fifth between lumbar vertebrae and the lumbar vertebrae; intervertebral disc first sacral lies be- bodies serves as a vertebral cushion; tween pulpy pulposus, material, or nucleus soft consists very fibrocartilaginous by a firm sub- surrounded At last examination, annulus. stance, few testimony, plaintiff’s preceding days the doctor’s com- original plaints with those on the identical were exam- complained pain except more ination, past; had than he doctor extremities lower 560h *9 except instructions of his any previous did not change the pain; medication to relieve a little give stronger permanent which he found is the condition ruptured or interver- rupturing and irreversible —the and fifth or lumbar, disc between the fourth tebral fifth lumbar and the first sacral cannot between the means by itself, improve; plain- which spontaneously, medical and treatment, tiff continue have should of a need for an opera- is a further possibility there he would not an time advise tion; present at which improve pain we could operation; very likely lower down the and the right extremity is radiating the lower down both extremi- tingling numbness we am convinced could improve I not ties, but perform lower back cannot duties pain; deal of or great bending pro- which require lifting, on box cars or climbing tracted hard standing, any require bending, pro- work that would or stooping standing. tracted walking he testified that cross-examination limita-
On and back of the plaintiff motion of the legs tions of based on plaintiff’s the witness are com- described by intervertebral disc is ruptured cor- plaint pain; does about five, surgery; maybe reetible seven week, disc would esti- operations intervertebral cent of the cases of per in about inter- mate are patients cured, operations disc vertebral to a improved point are where cent per they about complaint but have pain most things can do they and in 10 cent per operations tolerable, which a relatively it is common improvement; is no there by neurosurgeons performed operation, type competent hands it is surgeons; orthopedic also by risk to the patient significant attended by upon attendant normally risk that is than the other operation; never surgical a major performing for the reason that he for surgery prescribed 560i *10 might improve believed Ms condition under conserva- tive relatively treatment; Ms condition has remained possible ruptured stable and it is interverte- may go place; bral disc back into be did not recede— plaintiff any X-rays any take of and bad not seen X-rays report; when made be Ms initial since be then X-ray (Dr. Zeitlin) talked with the man and discussed X-rays got report the Mm; with be a also from Dr. laboratory; opinion plaintiff’s diag- Zeitlin’s bis as to particularly X-ray report; nosis is not the based on report merely degree ruled out advanced of spondylolisthesis slipping osteo-artbritis or for- —a ward of fifth lumbar on the the first sacral vertebra; report slip- referred to a subluxation —that a is, ping position; a out of normal vertebra its —of slipping a stated there was backward of the fifth lum- upon pos- bar first sacral if vertebra; vertebra a type enough of that terior subluxation is severe it can produce pain symptoms of which of com- rupture being any plained without there of the disc; per only about cent of the cases can wе tell protrusion a whether there is intervertebral disc spinal X-rays; canal a into the view of if the X-ray space the vertebrae on the is between narrower may indicate the normal, than intervertebral disc produced spread pressure a like cushion and has out pressure spinal only spinal it is on cord; on spinal explain can nerve roots that cord or the pain thigh leg; down the sensation fact protruding can be intervertebral disc a demonstrated tecMiiques X-ray pantopaque known as a certain technique whereby radio-opaque a myelogram sub- —a spinal injected canal; into the another is tech- stance dyodrast, radio-opaque Mque discogram, where ais pulpy injected center of the into the nu- material, ruptured discogram may supposed disc; cleus of performed at more than intervertebral disc one be a time.
560j diagnosis Spiegel from his then testified that Dr. possibility was a he concluded there rupture more intervertebral discs that one or perform myelogram did either mentioned; process diag- discogram his in the operation an would condition; as nosis probably pain, radiating felt his but he certain relieve pain sufficiently to low back it would not relieve his opinion surgery; the low it is back warrant pains *11 longitudinal liga- posterior, are the caused the intervertebral which is the annulus in ment, behind supplied highly very are these two structures disc; barely endings sensory and when touched nerve with pain; removing that cause he does not believe any way change offending would in intervertebral disc posterior longitudinal fact that he has herniated the ligament subjected unlikely it is movement; which is ligament stretching of the that condition improve possibility he is that time; would there imprоve, patients has seen doctor, could he, unlikely; spontaneously get is but it better, sublux- a condition ation of fifth lumbar vertebra is which origin; congenital may congenital in such be condition injury may predispose activity from individual person harm; do without as far which normal could X-rays interpretation con- of the as Dr. Zeitlin’s may may or he which found cerned, the subluxation congenital. not be orthopedic surgeon, Zeiss,
Dr. Fred R. an examined hospital July plaintiff company 30, at the following, again August when 9th stated getting He that on the he worse. testified that was plaintiff’s diagnosed condition as he first examination sprain back; of the low second the muscles complete; very it included the Lase- examination being able normal, gue of which was result test, the degrees, degrees thigh plaintiff’s or 10 to flex the 560k beyond upright angle; X-rays tbe taken under his di- pathological rection in the findings; showed no or unusual objective findings examination he no found complaints plaintiff; subjective reference to the symptom pain keeping ruptured was in with a in- objective findings tervertebral disc, but there were no opinion confirm it; was of the could do the work of a switchman. Dr. Richard J. surgeon plain- chief Bennett, tiff on for defendant, examined September 14, 1954. He testified that was opinion plaintiff was able to return to the normal opinion duties of a railroad switchman; he based his plaintiff gave only subjective on symptoms; fact him signs not did have sufficient objective symptoms protruded of a intervertebral spasm, narrowing space disk, such as muscle pushed between the vertebrae where the disk has been change atrophy, out, the reflexes and loss in knee jerk. jerk and ankle
As to the excessiveness of the verdict, defendant objections: raises two Failure to show a causal connec- plaintiff’s injuries tion between claimed and his acci- secondly, sufficient dent; evidence that *12 injured injuries, by the if caused him accident, have to $50,000. extent of the Spiegel’s diagnosis final statement of his of
Dr. rupture possibility plaintiff a of a of was one or both discs between the fourth and the fifth intervertebral of between the fifth lumbar or and the vertebrae lumbar cross-examination he men- vertebrae. On first sacral posterior longitudinal ligament.” a “herniated tioned Spiegel Drs. witnesses Silver Plaintiff’s fifth lumbar the ver the subluxation that testified congenital Dr. said may in nature. Silver be tebra produced by that he knows trauma; be it could that present and at it was 1954 only films that from the only guessing be as to and would the trial, time the 560-1 long prior may how to it have existed. He does 1954 testify not by been or conld have caused affected such There
an accident as described. testimony no that the other conditions shown the ruptured or the intervertebral disc or herniated films, posterior longitudinal ligament, might or could be affected or caused or The trauma accident of kind. upon plaintiff prove by prepon was burden a only derance of evidence not аilments they also that were the but result of occur exist, complains. Hannigan Elgin, rence of which he v. J. & App. ill-being Ry. Ill. Co., 538, E. 337 551. The sprain (except possibly its cause expert back) of the low are muscles matters of opinion proved by testimony which should be experts speculation and not to the medical left Thompson’s jury. Blarjeske v. Co., Restaurant 325 App. Martin’s 189, 194; Ill. Duncan v. Restaurant, App. prove failure to a Ill. 188. On Inc., 347 causal connection between the accident and the ele charged damage sought to be ments no accident, Chicago recovery Allison сan be had. v. Transit App. (abst. 44191). Authority, Ill. No. Moreover, evidence is insufficient suffering finding support a was from posterior ruptured disc or herniated intervertebral Spiegel ligament. only longitudinal is witness Dr. diagnosis, subject. testifying first adhered this His on on trial based his direct examination by plain subjective solely symptoms pain suffered — ruptured muscles, tenseness of tiff and the fifth the fourth and lum disc between intervertebral bar vertebrae fifth lumbar and the first between definitely locate the does He sacral vertebrae. symptoms Subjective ruptured are admissible disk. physician circum only under known to when made *13 suspiсion having from the free them stances which 560m present been elicited with reference litiga to or future (Illinois tion Cent. R. 438), Co. v. Sutton, Ill. be cause it must be assumed that a man will not lie ato hopes doctor from whom he to obtain medical aid. King Pillinger, Opinion page Evidence in Illinois, Although Spiegel appears 93. treating Dr. physi as a subjective symptoms cian, the were elicited under cir greatly impairing probative cumstances their value, rendering if not them inadmissible. We do not decide question. purposes the latter of the One of the exam purpose, if give plaintiff’s ination, attоrney not the chief was to report on condition. This fact plaintiff. was known They to the doctor and to also pending knew that this law suit was and that might upon testify plaintiff. doctor be called for inquired doctor had these The facts mind when he complaints pain. as to his Plaintiff had the same facts in when he mind answered the doctor. treating
Moreover, doctor did little in attempting for his troubles other than pain. Beyond observing during lessen steps took no examinations, he to ascertain the truth falsity subjective symptoms. He testified report X-rays of Dr. Zeitlin on the made no ruptured intervertebrаl disc; reference to per ruptured only of the cases would a about 20 cent appear X-ray a film. He did not use known disc discogram, myelogram techniques, or a such as a ruptured plaintiff had a or not disc. ascertain whether The having inadequacy been his examination devel posi oped he retreated from his cross-examination, ruptured diagnosis of a intervertebral disc to tive rupture possibility one diagnosis of a or more aof discs had mentioned. the two intervertebral ruptured possible arising Damages interverte from speculative merely and nоt recoverable. disc are bral App. Co., Ill. L. & I. Water East St. v. Salaban 560n *14 Authority, Chicago Transit cited in Allison v. 358, supra, App. 44191). (abst. No. 336 Ill. 224 proof with reference to has been said
What ruptured applies equal with effect to disc ap longitudinal ligament, posterior which herniated predicated upon pears testimony to be from ruptured spreading with the disc to contact ligament. the failure of this evidence, Because of by plaintiff damages possible are recoverable limited sprain damages arising from the of the muscles to diagnosed by defendant’s doctor on the lower back, fоllowing day and the award accident, $50,000 damages grossly judgment The for these excessive. the cause remanded for a new must be reversed plaintiff’s damages. to trial as by questions
The raised defendant with respect ruling the court on evidence to Hanley and the refusal of the court to examination of relating negli give instruction No. to 4 defendant’s gence, and need not be considered us. are now moot objects giving instruc Defendant damages, ground injuries on the tion No. 12 on damages might be awarded were not limited for which preponderance proved by injuries of the evidеnce complained from the accident resulted of. A to have faulty was held to be for this instruction reason like Ry. App. Elgin, & 325 Ill. Co., E. v. J. 572 Collins 43008). (abst. No. argument gave case oral of this defendant
the On preparing immediately and would it was notice petition in the nature of a motion in this court file section Practice new under 72 Civil trial, for newly ground discovered evidence. After on the Act, been reached defendant the case had decision of our purport- petition supported by presented affidavits its employed ing was as a casual show from day-rate Services, Inc., Miller Carlson laborer
560-O April July 28, until (judgment 21, 1956 was en April 1956), tered herein performing physical 3, labor loading, packing crating such as objects; various employed by the North Austin Yan permanent Lines on a more or less July basis from August injured. (He 13, 1956, when he was August 23, died 1956 and his administratrix was sub *15 party plaintiff.) stituted as employment In this piano worked as a carrying furniture and mover, place lifting furniture from and of removal to the van, carrying objects, very heavy various both and loading light, unloading appeared and trucks; he to be physical perform in normal actions and was able to required job, using all duties of his his limbs, legs complaint pain and back without or indi that he cation was not able to do this work. Defend petition ant asked leave to file its in this court; that petition dispo remanded be to the trial court for granted in the sition, or alternative leave be de the.petition to file in the fendant trial court and that dispose peti that court be directed to hear and of the tendering an tion. Without issue of fact, legal objections granting filed of the motion. right supported by Haaga relief Defendant’s is v. Logging Saginaw Co., Wash. 93, 170 15 P.2d 655, commencing Kroning Minnesota cases with series City Ry. Co., Paul 96 Minn. v. St. N. 888,W. page 1307. Eemandment of and 5 J. S. the case for C. question damages gives on the a new trial defend sought right ant the relief introduce evidence —the in stated facts affidavits. Further of the orders petition unnecessary. The is denied. are judgment is reversed the cause The remanded question plaintiff’s damages. trial on the for a new remanded. Eeversed concur. FEIEND, JJ., BUEKE 560p Rehearing On opin- delivered PRESIDING JUSTICE BURKE ion of the court. expressed previous adhere to the
We view our opinion finding jury question of the on the liability should not be disturbed. We followed Bow Ry. Ill.App.2d man v. Co., Illinois Cent. 182, 202-3, deciding question damages that the verdict on the against weight was the manifest of the evidence. Since opinion Supreme our reversing filed, Court, in judgment our reinstating the Bowman ease and judgment plaintiff, in favor of the decided that in Fed Employers’ Liability eral determining Act we cases are limited evidentiary
whether there was an basis for the reweigh verdict, and that it is error to the evi dence and set aside the verdict. We conclude that on the record in the case at to decide that the right bar we do have the finding jury damages against weight the manifest of the evidence. opinion pointed In the we out an instruc *16 tion similar to instruction No. 12 on the sub ject damages faulty was held to be in Collins v. Elgin, Ry. App. Joliet and Eastern Co., 325 Ill. (Abst.). objects giving Defendant to the of this instruc ground injuries tion on the damages for which might injuries proved be awarded were not limited to preponderance of the evidence to have resulted jury from the occurrence. was authorized to Under instruction the bring in a verdict “for the full damages” resulting any physical amount of the from existing condition at the time of the trial and which might regard extend into the future without relationship throwing causal between the of the switch misconcep and the existence of those conditions. The conveyed jury by tion the instruction dissipated by any analysis (in other instruction. Our previous opinion) establishes tenuous basis on
560q which, damages an award of rests. In this $50,000 prejudicial instruction No. 12 was to a fair situation question damages. giving on the Because of the trial of trial on defendant should have new this instruction question damages. Remandment of the cause for damages gives parties question of a new trial on the the employment right evidence as to the introduce following entry Jensen activities Ole original judgment. judgment
The and the cause is reversed is remanded question plaintiff’s damages. for a new trial on the Judgment and cause remanded with direc- reversed tions. concurs.
FRIEND, J., part. took no BRYANT, J.,
560r