Summary
In Davis v. City of Mountain View, 247 S.W.2d 539 (Mo. App. 1952), another case relied upon by Mr. Wright, the plaintiff was injured in a fall which resulted from stepping in a hole in a defective sidewalk.
Summary of this case from Wright v. LongOpinion
No. 7047.
March 24, 1952.
APPEAL FROM THE CIRCUIT COURT, HOWELL COUNTY, GORDON DORRIS, J.
Robert L. Hyder, Green Green, Will H. D. Green and H. D. Green, all of West Plains, for appellant.
Esco V. Kell, A. W. Landis, West Plains, for respondent.
This is a damage action for injuries alleged to have been received by the plaintiff from a fall caused by stepping in a hole in a defective sidewalk. The answer denied the allegations of the petition and further pleaded contributory negligence. The verdict was for plaintiff in the sum of $26. From a judgment thereon, plaintiff appealed.
The evidence shows that the plaintiff lived in the eastern part of Mountain View, Missouri. That the street travelled in going to the business section was Second Street, which ran east and west and to that part of the city from plaintiff's residence. On the evening of the 15th of June, 1950, the plaintiff, his wife and two children walked along the south sidewalk of Second Street westwardly to the business section of the city to attend a picture show. They went down the sidewalk about 7 or 7:30 p. m., attended the show and were returning home shortly after 9 o'clock when the accident happened. The sidewalk on the north side of Second Street was made of concrete blocks, was very rough and consequently, the south sidewalk was generally, if not always, used by the plaintiff. Plaintiff had lived in the east part of town for seven months, had gone to town practically every day and had full knowledge of the hole in the sidewalk. Plaintiff testified, "I suppose everybody in town knew it was there." It had been there for about 6 years. This sidewalk was four feet wide and eight or nine feet west of the hole was a depression or "step-down", about which plaintiff knew.
As they returned from the picture show on the south sidewalk of Second Street, his daughters were walking six or seven feet ahead of plaintiff and his wife. His wife was on the south side of the sidewalk and he was walking to her left and on the north side. When he got to the step-down he knew that eight or nine feet further on, on his side of the sidewalk, was the hole in question. Plaintiff testified, "* * * we got to the hole before we thought we had and I just stepped down in there and fell * * *." He knew it was there but couldn't see it. He testified, "I knew the hole was along there some place and I stepped into it before I thought." This hole was about 23 inches from north to south, 20 inches from east to west, and between 8 and 12 inches deep. The leaves on the trees cast a shadow over the portion of the sidewalk in which the hole was situated, thereby obstructing the light from a street lamp. At the time of passing the step-down, he was talking and forgot to be careful about the hole, stepped in it and fell on the sidewalk and was injured. After his wife and children helped him up and across the street, he became sick, sat down on the curb and omitted twice. His left hand and arm were injured, the next morning it was swollen and he went to the Doctor, who put a splint on his arm and placed it in a sling, so he could not use it until the soreness had left. He was under this doctor's care for about two weeks. The doctor's bill for these treatments and some X-rays was $26.
Later, because of the pain in his arm, he went to another doctor at West Plains where it was X-rayed again and treated. Still later he went to the Veterans' Hospital in Kansas and stayed there 21 days. He testified that his shoulder, arm and hand pained him, that he was not able to close his hand or grip anything with it since the accident, could hardly lift anything with his left arm, that since the injury, because of it, he had been unable to sleep, had taken several sleeping tablets and that at the time of the trial, he had not recovered from the injury. He could only grip anything with his forefinger and thumb.
The first doctor consulted testified as to the present condition, and as to the treatments he had given plaintiff; that his hand was swollen some but that by proper exercise he thought he would be able to use it. It might take a year or eighteen months to regain its usefulness.
The evidence further showed that in 1941 or 1942, the plaintiff had been thrown from a truck which injured this same arm, but that it had recovered. That in March, 1950, a horse he had been leading jerked his arm, causing some soreness for two weeks, but that it was of a minor nature and had later disappeared. There was evidence that the X-rays did not show any broken bones either of the hand or shoulder.
At the close of plaintiff's evidence and at the close of all the evidence, the defendant filed motions for directed verdicts for the reason (among others) that plaintiff's evidence showed that he directly contributed to, or caused, any injuries he may have received. These motions were overruled. Plaintiff's motion for new trial alleges that the verdict was so grossly inadequate as to shock the conscience of the court and must have been the result of "bias and prejudice." If it appears so to us, we have the duty and authority to set it aside. Lilly v. Boswell, Mo.Sup., 242 S.W.2d 73; Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Ulrich v. Kiefer, Mo.App., 90 S.W.2d 140; Strange v. Ardison, Mo.App., 65 S.W.2d 115.
The defendant has not appealed and in its brief filed in this court asked that the judgment of the trial court be affirmed, so the question of whether the plaintiff's evidence shows him guilty of contributory negligence as a matter of law is not before this court for decision and upon which question we do not now express any opinion. Assuming but not deciding that the plaintiff was not guilty of contributory negligence, as a matter of law, the question left for us to decide is whether the motion for new trial should have been sustained, because the damages awarded were so wholly inadequate as to shock the conscience of the court, and to lead us to the conclusion it was the result of bias and prejudice.
If the evidence was conflicting as to whether plaintiff was guilty of contributory negligence, the jury was justified in finding negligence on the part of the city, and that plaintiff was not guilty of contributory negligence.
The undisputed evidence of plaintiff and his doctor was that the first doctor bill was $26. If plaintiff was entitled to a verdict at all, under this evidence he was not only entitled to this $26 but was entitled to some recovery for other medical and hospital services, pain and suffering and for any permanent injury he might have suffered by reason of defendant's negligence.
Whether the jury used the $26 verdict as a peg upon which to hang the costs of the litigation or whether it wanted to punish the city to some extent for its negligence in permitting the hole to remain in the sidewalk for this unusually long time, it is impossible for us to say. But either of those assumptions is more logical than to assume that the jury intended to compensate the plaintiff for injuries for which it thought the defendant was legally liable. If the plaintiff was entitled to anything, he was entitled to more than $26. If he was guilty of contributory negligence as a matter of law, he was entitled to nothing.
While we have authority, when the facts justify it, to affirm a judgments as to liability and reverse the cause for further trial upon the question of the amount of damages only, Sec. 512.160 MoRS 1949, V.A.M.S. Sec. 512.160, we do not believe that we should do so in this case, but that the whole cause should be reversed and remanded for another trial. It is so ordered.
BLAIR and McDOWELL, JJ., concur.