165 Mo. App. 628 | Mo. Ct. App. | 1912
This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant’s negligence. Plaintiff recovered and defendant prosecutes the appeal.
The evidence tends to prove that plaintiff was a passenger on defendant’s street car and was injured because of its servants’ negligently starting the same while she was in the act of alighting therefrom. The appeal presents but one question for consideration, and that relates to the action of the court in omitting to confine the recovery on certain items for special damages to the amounts claimed in the petition. As a result of being thrown upon the ground by the sudden starting of the car while in the act af alighting therefrom, plaintiff received a painful and permanent injury to her knee. It appears that she employed the services of a physician and a nurse to attend her and expended some means for medicine as well.
In the petition, plaintiff avers that she expended sixty-five dollars on account of doctor bills, ten dol
Though the petition prayed for a recovery on account of money expended in the employment of a physician, in the sum of sixty-five dollars only, and ten -dollars expended for medicine, and twenty dollars for nurse hire, the instruction authorized the consideration of such elements of damages and a recovery therefor in general terms without any limitation whatever, save the sum total of $7000 prayed for in the petition. Under the cases above cited, this constitutes reversible error, unless a remittitur may be entered here to save the verdict.
There can be no doubt that, in event of an excessive recovery, in some cases, it is competent for the appellate court to order a remittitur from the verdict, •on pain of reversing the same unless a relinquishment of the excess is entered. But when the question arises "under an erroneous instruction, as here, the rule obtains only on it appearing that the amount of the excessive recovery may be ascertained from the evidence and calculated with a reasonable degree of precision, "to the end of determining the amount which should be remitted, for, otherwise, such an attempt at ascertainment would amount to no more than a guess or conjecture. To justify the appellate court in ordering a remittitur, the evidence must reveal a criterion sufficiently accurate to determine, with a reasonable degree of precision, the amount of the excessive recovery 'under the particular instruction in judgment. Furthermore, it must appear, too, that no injury will be done to defendant in entering such remittitur, for, -unless such appears, it is entitled to have the case remanded, to the end of ascertaining the damages against it under proper instructions. [Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363; Creve Coeur Ice Co. v. Tamm, 90 Mo. App. 189.]
The judgment should be reversed and the cause-remanded. It is so ordered.