145 P. 939 | Nev. | 1914
Lead Opinion
By the Court,
The plaintiff, a man 29 years'of age, with eleven years of experience in railroading in various positions, and earning on an average about $170 a month as a conductor and brakeman, instituted this action to recover $25,500 damages for the loss of his right forearm, which was crushed between the couplers of ore cars while he was endeavoring to effect a coupling. The accident necessitated the amputation below the elbow. A verdict was rendered in favor of the plaintiff for the full amount claimed. On.this appeal from the judgment and from the order denying the motion for a new trial, it is contended that the evidence is insufficient to justify the verdict; that misconduct of counsel for respondent warrants a reversal; that the court improperly instructed the jury; and that the damages are excessive.
The court instructed the jury that, under the law of this state, common carriers are liable to employees for damages which may result from negligence of the officers, agents, or employees of the common carrier, or by reason of any defect or insufficiency due to their negligence in its cars, engines, and appliances. The statute upon which this instruction is based, the liability act of 1907 (Stats. 1907, c. 214), has been sustained as constitutional by this court in Lawson v. Halifax Mining Co., 36 Nev. 591, 135 Pac. 611, 138 Pac. 261; writ of error to Supreme Court of the United States granted, 36 Nev. 646.
In that case (32 Nev. 75, 104 Pac. 225, Ann. Cas. 1912b, 1166) we sustained a verdict for $20,000. When injured, Burch was 37 years old, earning about $100 a month, and was gradually advancing in the defendant’s employment. While boarding a caboose, he was struck by a switch stand, thrown upon the track, and the cars ran over his left leg and right foot, necessitating amputation of the left leg three inches above the knee and three toes of his right foot. He grew weaker physically, and lost from fifteen to eighteen pounds. At times an artificial' leg could be worn, but it irritated the stump and made it sore. By the contesting of his case in different courts, Burch had been delayed for many years in obtaining relief, and he had' previously obtained a verdict for $18,000.
Although the respondent’s was a most severe injury for the loss of an’ arm below the elbow, and, as said by counsel for respondent, the loss of a right arm is more serious than that of the leg, when we consider all the circumstances relating to the two cases, we conclude that the injury resulting to Knock was not as serious as the one caused to Burch.
Among the many cases in the books, we do not find any in which a sum as large as that awarded to respondent by the verdict was allowed to stand for the loss of an arm under conditions and results no more serious than those which relate to or flow from the accident suffered by respondent.
Among the largest verdicts sustained for soméwhat similar injuries is that in the Fullerton case, 167 Fed. 1, 92 C. C. A. 463, in which there was an award of $16,500 to the first mate of a vessel, earning $150 per month, for the loss of his right arm near the shoulder, accompanied with much pain and suffering.
"In Cleveland, Cinn., C. & St. L. Ry. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. n. s. 527, 16 Ann. Cas. 1, the Supreme Court of Indiana sustained a
Verdicts have been sustained for the loss of an arm, for $10,000 in St. Louis S. R. R. Co. v. Groves, 44 Tex. Civ. App. 63, 97 S. W. 1084, in favor of a brakeman 21 years of age, earning $100 per month, who lost the right arm between the shoulder and elbow; for $12,500 in Rodney v. St. Louis S. R. R. Co., 127 Mo. 676, 28 S. W. 887, 30 S. W. 150, in favor of a switchman 28 years of age, earning $100 per month; for $7,000 in Atchison R. R. Co. v. Sledge, 68 Kan. 321, 74 Pac. 1111, in favor of a switch-man 23 years of age, earning $80 per month; in Sobieski v. St. Paul R. Co., 41 Minn. 169, 42 N. W. 863, for $5,000, in favor of a switchman 30 years of age, for loss of arm below the elbow; for $5,000 in Mobile R. Co. v. Harmes, 52 Ill. App. 650, in favor of a brakeman.
Verdicts have been held excessive for the loss of an arm, for $20,000 in Chicago R. Co. v. Kane, 70 Ill. App. 676, in the case of a laborer 19 years of age, earning $1 per day, and who had the arm amputated near the shoulder; for $13,000 in Louisville R. Co. v. Lowe (Ky.) 66 S. W. 736, in favor of a train inspector 34 years of age earning $1 per day; for $10,000 in Illinois Central R. R. Co. v. Welch, 52 Ill. 184, 4 Am. Rep. 593, in favor of a brakeman who lost the left arm.
Verdicts for $15,000 for the loss of an arm were reduced to $10,000 in the case of Texas R. Co. v. Hartnett, 33 Tex. Civ. App. 103, 75 S. W. 809; injury to locomotive engineer who lost the left arm near the elbow joint, in Silberstein v. Houston Str. Co., 52 Hun, 611, 4 N. Y. Supp. 843; and in O’Donnell v. American Sugar Refining Co., 41 App. Div. 307, 58 N. Y. Supp. 640, in which case a laborer lost the right arm below the elbow.
Reference is made to numerous other cases relating to such injuries in the extensive note in 16 Ann. Cas. 21.
We are not unmindful of the serious consequences relating to the loss of an arm; and, considering respondent’s health and general condition, and' occupations which he may learn to pursue, but in which he may not earn nearly so much as in his former employment, and the disability under which he must labor through life, we conclude that, under the circumstances disclosed by the present record, $15,000 would be a fair compensation for the injury which he sustained.
If within fifteen days respondent file in this case his written consent that the judgment be modified by reducing the amount allowed for damages for the injuries sustained to $15,000, an order may be made that the judgment be modified accordingly, and that it stand as so modified. If such consent be not so filed, the case will be remanded for a new trial.
Concurrence Opinion
I concur in the judgment.