Belding v. St. Louis Pub. Serv. Co., 215 S.W.2d 506; McCloskey v. Koplar, 46 S.W.2d 557; Harke v. Haase, 75 S.W.2d 1001; Rodenkirch v. Nemnich, 168 S.W.2d 977. (8) The verdict of the jury is so excessive as to show passion and prejudice on the part of the jury. Kulengowski v. Withington, 222 S.W.2d 579; Hughes v. St. Louis Natl. League Baseball Club, 218 S.W.2d 632; Wofford v. St. Louis Pub. Serv. Co., 252 S.W.2d 559; McBride v. Clarida, 254 S.W.2d 36; Reeves v. Thompson, 211 S.W.2d 23. David T. Cavanaugh, Thomas E. Hudson and Hudson Cavanaugh for respondent.
(5) The judgment is excessive. Harvey v. Gardner, 859 Mo. 730, 223 S.W.2d 428; Baker v. Kan. City Terminal Ry. Co., 250 S.W.2d 999; McBride v. Clarida, 254 S.W.2d 36. Ben W. Swofford, Robert A. Schroeder and John C. Mitholland for respondents; Swofford, Schroeder Shankland of counsel.
Plaintiff cites, with respect to back injuries of somewhat similar nature, Long v. St. Louis Pub. Serv. Co., Mo.App., 288 S.W.2d 417, 427; Statler v. St. Louis Pub. Serv. Co., Mo.App., 300 S.W.2d 831, 837 [10-12] (upholding verdicts for $4,500 and $3,500, respectively); and, with respect to nose injuries, Clark v. Atchison Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079, 1083[14] ($18,800 reduced to $8,800), and Emerson v. Mound City, Mo., 26 S.W.2d 766[3] (upholding a $10,000 verdict to a young mother). Defendants cite, with respect to back injuries, Harvey v. Gardner, 359 Mo. 730, 223 S.W.2d 428, 433[11] ($8,000 reduced to $5,000); Kulengowski v. Withington, Mo.App., 222 S.W.2d 579, 586 (verdict for $4,500 reduced to $3,000); Harding v. Kansas City Pub. Serv. Co., Mo.App., 188 S.W.2d 60, 69 ($5,000 verdict reduced to $3,000); and, with respect to nose injuries, Foster v. Kurn, 236 Mo.App. 1149, 163 S.W.2d 133, 139[14-16] (trial court reduced $7,024 to $5,000, which was affirmed); McBride v. Clarida, Mo.App., 254 S.W.2d 36 ($5,000 reduced to $3,000). We have read the foregoing cases and others.
The child sustained a fracture of the nose and a laceration of the upper lip. This resulted in a slight deformity at the bridge of the nose, which was not very noticeable, as well as a scar on the front of the upper lip. The judgment of the trial court was for $1,000. Upon review the appellate court ordered the award reduced to $750. The plaintiff in McBride v. Clarida, Mo. App. 1953, 254 S.W.2d 36, received permanent nose injuries and other injuries resulting in headaches and nervousness for a period of several months. The plaintiff lost six weeks' employment and the record contained considerable testimony as to pain and suffering.
In conclusion, he said, "I think that the man is physically not qualified for employment." The injuries and verdict here are indeed not comparable to those in McBride v. Clarida, Mo.App., 254 S.W.2d 36, relied on by the railroad, in which a $5000 verdict was reduced to $3000. And the verdicts declared not excessive, in one instance after a remittitur by the trial court, in Pitt v. Kansas City Public Service Co., Mo., 272 S.W.2d 193 and Venditti v. St. Louis Public Service Co., 362 Mo. 339, 240 S.W.2d 921 are not particularly helpful or analogous even though one instance involved somewhat comparable injuries.
Ferdente v. St. Louis Pub. Serv. Co., 247 S.W.2d 773; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Lanio v. Kansas City Pub. Serv. Co., 162 S.W.2d 865; Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Dahlen v. Wright, 235 S.W.2d 366; Barnes v. Vandergrift, 238 S.W.2d 439. (5) The court erred in giving and reading Instruction 1 for the reason that said instruction erroneously assumed that the stopping of the bus ten feet from the curb was not as near the curb as was practicable, and assumed that it was negligence; it ignored the factual situation developed by plaintiff's evidence and authorized a recovery for a violation of an ordinance, when that violation could not have been the proximate cause of the plaintiff's injuries. Battles v. United Rys. Co., of St. Louis, supra; Borack v. Mosler Safe Co., supra; Krelitz v. Calcaterra, supra. (6) The verdict is grossly excessive and is the result of bias and prejudice on the part of the jury, or sympathy for plaintiff. McBride v. Clarida, 254 S.W.2d 36; Stanley v. Ray, 220 S.W.2d 75; Burris v. Kansas City Pub. Serv. Co., 226 S.W.2d 743; Aut v. St. Louis Pub. Serv. Co., 238 Mo. App. 1136, 194 S.W.2d 753; Arl v. St. Louis Pub. Serv. Co., 243 S.W.2d 797; Roberts v. Carter, 234 S.W.2d 324. John T. Murphy, Jr., and Morris B. Kessler for respondent; Joseph Nessenfeld of counsel.
McSkimming v. St. Louis Public Service Co., Mo.App., 257 S.W.2d 176, 180 (6); Salzwedel v. Vassil, Mo.App., 351 S.W.2d 829, 838(8); Daniels v. Banning, supra, 329 S.W.2d loc. cit. 654-655; Smith v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 102; Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W.2d 679, 685(9); Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348, 354(13); Long v. St. Louis Public Service Co., Mo.App., 288 S.W.2d 417; Arl v. St. Louis Public Service Co., Mo.App., 243 S.W.2d 797; Baker v. Kansas City Terminal Ry. Co., Mo., 250 S.W.2d 999, 1006-1007; Harvey v. Gardner, 359 Mo. 730, 223 S.W.2d 428, 433(11). McBride v. Clarida, Mo.App., 254 S.W.2d 36; Brooks v. McCray, Mo.App., 145 S.W.2d 985; Ulmer v. Farnham, Mo.App., 28 S.W.2d 113. The judgment is affirmed.
Considering the rules indicated and all the factors employed in passing upon the excessiveness of verdicts, including the possibility of error on the part of this court, this verdict is yet excessive in the sum of $4000. McBride v. Clarida, Mo.App., 254 S.W.2d 36; Harvey v. Gardner, 359 Mo. 730, 223 S.W.2d 428; Baker v. Kansas City Ter. Ry. Co., Mo.Sup., 250 S.W.2d 999. If, therefore, the plaintiff will enter a remittitur in the sum of $4,000.00, within fifteen days, the judgment will stand affirmed in the sum of $6,000, as of the date of the judgment, otherwise the judgment will be reversed and the cause remanded for a new trial.
In the Arno case there were quite severe injuries rendering the two cases incomparable. In Roberts v. Carter, Mo.App., 234 S.W.2d 324; McBride v. Clarida, Mo.App., 254 S.W.2d 36, and Morris v. Alexander, Mo.App., 275 S.W.2d 373, in all of which the plaintiff suffered more serious injury than in the instant case, judgments for $4,000, $5,000 and $4,500, respectively, were cut to $3,000. Viewing the evidence in the light most favorable to plaintiff and giving due consideration to the amounts allowed to stand in comparable cases, we are forced to conclude that the verdict is excessive by $1,500.
There the jury's verdict of $4,500 was reduced to $3,000. McBride v. Clarida, Mo. App., 254 S.W.2d 36, also relied upon by defendant, furnishes little, if any, support to the contention of excessiveness. Therein the plaintiff sustained a nose injury, and suffered from headaches and a nervous condition for several months.