Opinion
May 27, 1932.
1. NEW TRIAL: Inadequate Verdict. Sustaining a motion for new trial on the ground that the verdict was inadequate is in effect a ruling that the verdict is contrary to the weight of evidence.
2. ____: ____. In an action for injury to the plaintiff's knee followed by infection which spread throughout the leg and up to the abdominal cavity, requiring repeated surgical operations and blood transfusions, leaving the leg shortened by an inch and one-half and the knee joint completely ankylosed, it was within the discretion of the trial court to set aside a verdict for $5,000 as inadequate.
Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.
AFFIRMED.
Jones, Hocker, Sullivan Gladney and Willard A. McCaleb for appellant.
(1) The law fixes no definite standard of sums which must be allowed in personal injury actions, and the fixing of damages in such cases is peculiarly within the province of the jury and must be left largely within their discretion. Pritchard v. Hewitt, 91 Mo. 547; Brown v. Union Railway Co., 51 Mo. App. 193; Grott v. Johnson, 2 S.W.2d 785; Maloney v. United Railways, 237 S.W. 509; Bright v. Sammons, 214 S.W. 425; Furnish v. Mo. Pac. Ry., 102 Mo. 669. (2) Exceptions cannot be sustained to the size of the verdict unless it is so inadequate or so excessive as to shock the judicial conscience or unless it appears aliunde that the jury was influenced by bias, passion or prejudice. Grott v. Johnson, 2 S.W.2d 785; Boggess v. Metropolitan St. Ry. Co., 118 Mo. 339; Pritchard v. Hewitt, 91 Mo. 547; Fischer v. St. Louis, 189 Mo. 567. (3) The mere fact that the verdict is either large or small furnishes no evidence and raises no presumption that the jury was influenced by bias, passion or prejudice, and a new trial should not be granted on the sole ground that the award of damages was an amount less than might have been awarded, or an amount in excess of what the court considers fair. Brown v. Union Railway Co., 51 Mo. App. 193; Cochran v. Wilson, 287 Mo. 210; Pritchard v. Hewitt, 91 Mo. 547; Broughton v. S.S. Kresge Co., 26 S.W.2d 838; Dowd v. Westinghouse Air Brake Co., 132 Mo. 579; Boggess v. Metropolitan St. Ry. Co., 118 Mo. 339; Chitty v. St. Louis, I.M. S. Ry., 166 Mo. 444; Russell v. Mo. Pac. Ry. Co., 316 Mo. 1309; Hallenbeck v. Railroad, 141 Mo. 113; Clifton v. Railroad, 232 Mo. 715; Cook v. Globe Printing Co., 227 Mo. 471; Beall v. Kansas City R. Co., 228 S.W. 838; Harris v. Construction Co., 168 Mo. App. 728.
Mark D. Eagleton and Frank P. Aschemeyer for respondent.
(1) The decision of the trial court that the verdict was wholly inadequate to compensate plaintiff is a finding that the verdict, as to the amount of the damages, is against the weight of the evidence, and the action of the trial court cannot be disturbed on appeal if there is any substantial evidence to support it. Hunt v. Gillerman, 39 S.W.2d 369; St. Louis v. Franklin, 26 S.W.2d 954; State ex rel. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Devine v. St. Louis, 257 Mo. 470. (2) The trial court has a large discretion in setting aside verdicts it deems inadequate, and an appellate court will refuse to interfere with the trial court's action unless an abuse of discretion is manifest. In the exercise of this discretion the trial court may weigh the evidence and set aside the verdict if it deems it unjust or inconsistent with the evidentiary facts and circumstances, even though the verdict be for a substantial amount. Sofian v. Douglas, 23 S.W.2d 126; McCarty v. Transit Co., 192 Mo. 396; Kelly v. Columbia Box Co., 248 S.W. 589; Dorset v. Chambers, 173 S.W. 725; Platt v. Cape Girardeau Bell Tel. Co., 12 S.W.2d 933; Settles v. McGinley, 296 S.W. 846; Wise v. Rubenstein, 24 S.W.2d 203; Lilley v. Eberhardt, 37 S.W.2d 599. (3) Where the trial court believes that a mistake has been made by the jury in awarding damages in too small a sum, the court may set aside the verdict, even though it is for a substantial amount. Sec. 1002, R.S. 1929; Phillips v. Railroad Co., L.R. 4 Q.B. Div. 406; Greenstein v. Dembling, 135 A. 663 (N.J.); Barney v. Anderson, 116 Wn. 352; Ellis v. Bus Co., 135 A. 271. (4) There was substantial evidence to justify a verdict greatly in excess of that awarded, and the verdict is grossly inadequate by comparison with verdicts upheld for similar injuries. Fowlkes v. Fleming, 17 S.W.2d 511; Messing v. Drug Co., 18 S.W.2d 408; Wheeler v. Railroad, 18 S.W.2d 494; Manley v. Wells, 292 S.W. 67; Jackman v. St. L. H. Ry. Co., 231 S.W. 978; Breen v. United Rys. Co., 204 S.W. 521.
This is an action for personal injuries. In the petition plaintiff's damages were laid at $50,000. The jury assessed the same at $5000; the trial court set aside the verdict on the ground that the award was inadequate. From the order granting a new trial defendant appeals.
On November 11, 1927, plaintiff attended a show at the Orpheum Theatre in the city of St. Louis, owned and operated by defendant, and, after having seen the show, was attempting to leave the theatre, when she tripped over a step and fell, injuring her right knee. It is conceded that there was sufficient evidence to warrant the submission of the case to the jury on the ground that the defendant was negligent in failing to place a light on the step for the purpose of warning patrons of the theatre of its presence.
As the immediate result of the fall plaintiff suffered a "skinned contusion" over the middle part of her knee. Presently a violent infection set up which spread throughout the right leg and up to the abdominal cavity. Plaintiff was taken to a hospital where she underwent repeated surgical operations. Her condition became so desperate that blood transfusions were resorted to to keep her from dying. She remained in the hospital eight months. During the greater portion of that time she suffered intense pain, being relieved only by opiates which were frequently administered to her.
As a result of the infection the bones of plaintiff's right leg have grown together at the knee. The knee joint is completely ankylosed: it is permanently and rigidly fixed at an angle of twenty degrees. The leg has been shortened thereby to the extent of an inch and a half. In walking she finds it necessary to elevate her heel and to place her weight on the fore part and the outside of her foot. She requires the use of a cane. These conditions are permanent: throughout the remainder of her life she will carry with her a disfiguring and disabling right limb.
Plaintiff is a married woman and at the time of her injury her vocation was that of housewife. On trial she made no effort to show pecuniary loss, either present or prospective.
Appellant contends that as there was an award of substantial damages, the action of the trial court in setting aside the award on the ground of inadequacy was a plain usurpation of prerogatives which only a jury may exercise.
If the jury had assessed plaintiff's damages at twice the sum they did, their verdict could not have been held to be excessive; in ruling that the award made was inadequate, the trial court in effect ruled that it was contrary to the weight of the evidence. On the authority of Hunt v. Iron Metal Co., 327 Mo. 887, 39 S.W.2d 369, and cases therein cited, its order granting a new trial on that ground is affirmed. The cause is remanded. All concur.