212 N.W. 533 | Minn. | 1927
Appellant drove an automobile south on Wabasha street in St. Paul. When crossing Sixth street he was on the right and near the front end of a street car traveling in the same direction. A truck was parked at the right-hand curb of Wabasha street a short distance south of Sixth street. Plaintiff had parked his car immediately in front of the truck. The street was narrow and appellant was in a position where the street car prevented him from turning to the left sufficiently to pass the truck. His car came in contact with the street car and struck the rear of the truck driving it against *334 plaintiff's automobile at a time when he, plaintiff, had the door open and was leaning out looking back for approaching vehicles before leaving the curb. The collision threw him from the car causing certain injuries. Plaintiff charged defendants with concurrent negligence. The court directed a verdict for defendant street railway company and the jury returned a verdict against appellant for $2,045.
1. Appellant served notice of motion and appeal on counsel for codefendant also and claims the right to contest the propriety of the directed verdict. This claim rests upon the theory that appellant was prejudiced by an erroneous ruling because it took from him the right of contribution since the record discloses neither moral turpitude nor wilful or conscious wrong between the defendants who may be adjudged joint tortfeasors. Underwriters at Lloyd's v. Smith,
2. The court charged the jury that the burden was upon the party claiming negligence to prove the same by a fair preponderance of the evidence. Throughout the charge the court seemingly assumed that plaintiff suffered an injury in the accident. Appellant's counsel pointed out the oversight and the court said:
"Counsel calls my attention to the charge in relation to the burden of proof being upon the party claiming negligence and injuries and damages, to prove the same by a fair preponderance of the evidence, which means the evidence must weigh more heavily in favor of the party claiming the same."
The court should have charged the jury that plaintiff had the burden of proof to show he was injured. Perhaps the language above quoted was sufficient. But there is another controlling feature which renders such error harmless. Plaintiff's testimony as to how he suffered the injury is practically undisputed. The testimony of some witnesses that they did not see him fall is negative. The attention of some, if not all, was naturally directed to the collision. We see no opportunity for the jury to have found differently, if the error had not been made.
3. Plaintiff was a locomotive engineer employed by the Northern Pacific railroad. The day after the injury he went to Dr. Joesting of the staff of the Northern Pacific Beneficial Association for medical attention. One Dr. Shillington of the same clinic took an X-ray of the injured hand. Upon the trial neither of these doctors was called as a witness but Dr. Ude of the same clinic and Dr. Drechsler were called as medical experts.
Appellant assigns as error the refusal of the court to instruct the jury that plaintiff's failure to call these physicians as witnesses permitted the jury "to indulge in the presumption that the testimony of the attending physicians if introduced would not have been favorable to * * * plaintiff's contention as to the nature and extent of the injuries he alleges resulted by reason of said accident."
An instruction of this character as to nonexpert witnesses who may be under the control of a party may be given in the discretion of the trial court. Knott v. Hawley,
4. It is claimed that the verdict is excessive and was given under the influence of passion and prejudice. Plaintiff, 42 years old, was a locomotive engineer earning $10 per day. He lost nine days. He had a property damage to his car of $45. His doctors were paid by the association of which he was a member. Plaintiff suffered pain at the time of injury to his hand which consisted of a fracture of a small particle of bone on the proximal end of the second metacarpal bone, which in healing produced an over-growth of bone and on hardening constituted an exostosis. This causes a painful sensation whenever he uses his hand. Plaintiff was left-handed. A locomotive engineer's work requires much use of the left hand. The injury occurred September 15, 1925. The trial was April 14, 1926, at which time plaintiff still had pain in his hand every time he attempted to use it. This deformity and pain are permanent. The bony growth may be removed only by surgery. There had been no improvement in the preceding three months. He did not have half the strength in his left hand that he had had. The condition of his hand disqualifies him from examination for a new position. The usefulness of his hand was impaired 25 per cent.
It is difficult for an appellate court always to feel contented with a verdict which is seriously close to being excessive. It is excessive when greater than can be legally permitted. But it is not our function to fix verdicts. We are required to pass upon them. Our power in this respect must be exercised sparingly. If we should yield to the almost constant demand of the bar to reduce verdicts or grant new trials, we would soon bring confusion into the practice and eventually reach the status where this court would be trying cases. We recognize that the approval of the verdict by the trial court is discretionary and we will not interfere unless it clearly *338 appears that there was an abuse of discretion. The verdict is presumed fair and reasonable unless the amount indicates prejudice or passion on the part of the jury, when it is the duty of the trial court to grant a new trial. Under the rule the verdict in this case must stand.
Affirmed.