Summary
In Weber v. St. Louis Public Service Co., Mo.App., 232 S.W.2d 209, a carrier was held to be negligent when plaintiff was in some manner caught by the closing doors of the bus and she was pulled along after the bus started up.
Summary of this case from Russell v. St. Louis County CabOpinion
No. 27939.
July 18, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WILLIAM K. KOERNER, J.
Wm. C. Connett, IV, and Edward A. Haid, both of St. Louis (Bryan, Cave, McPheeters McRoberts, of St. Louis, of counsel), for appellant.
Arthur E. McLeod, of St. Louis, McLeod and Ens, of St. Louis, of counsel, for respondent.
This is a suit to recover for personal injuries that the plaintiff sustained when the defendant's bus operator closed the bus door upon her as she was alighting. She was caught in the door and the bus started forward causing the injuries complained of. There was a verdict for the plaintiff in the amount of $12,920, which the trial court considered excessive and held that the defendant's motion for a new trial should be sustained unless the plaintiff remitted $8,000 of the verdict and judgment. Plaintiff made such remittitur and a new judgment for $4,920 was entered. It is from this judgment that the defendant prosecutes this appeal.
Plaintiff, a woman seventy years of age, was returning home, on July 1, 1948, after spending the evening taking care of some children while their parents were out. Her occupation was that of practical nurse and "baby sitter". To get to her home she had taken the City Limits bus and traveled northwardly on Jennings Road to Grimshaw Avenue, which was her destination. A number of passengers got off at that point and plaintiff was the last to leave through the rear door. She had alighted turning to the left but before her head was clear of the door it closed upon her neck and the bus started. She was pulled and walked along with the bus until it traveled some fifteen yards before it stopped.
A witness called by the plaintiff stated that at the time of the occurrence he had been standing on the sidewalk by the bus stop. He watched the bus discharge its passengers and the plaintiff was the last to leave. He stated: "Before she had an opportunity to get off the bus the door closed and the bus immediately started forward. The closing of the door pinned this lady so that part of her body was inside the bus and part was out. I observed that the lady's foot was dragging on the ground and as the bus was going was dragging." He said that he then ran forward shouting to the bus driver to stop and estimated that the bus traveled thirty feet before stopping.
Plaintiff testified that when her neck was caught by the door it hurt terribly and was bruised. She said that her neck was still sore and at times in the morning it was stiff. She thought that her right leg struck something because it was bruised and some veins were broken in it. When she reached home she called her physician, a Dr. Bowdern, who told her to put ice packs on her neck and leg. The next day her son took her to Dr. Bowdern's office and she continued to go for treatments twice a week for four months.
Dr. Bowdern testified that when plaintiff called at his office on the day following the accident there were some slight abrasions and contusions on her right leg and that some of the superficial veins were ruptured. She complained to him at the time of pain in her neck which was aggravated by movement of her head. Dr. Bowdern said that his patient had a pre-existing phlebitis in her right leg that seemed to have subsided prior to the accident but that the leg swelled thereafter. He explained that phlebitis was a clot of blood, formed in the veins of the leg, which interfered with circulation. In the opinion of Dr. Bowdern the swelling was caused by an aggravation of the pre-existing phlebitis. He stated that the condition as it was at the time of the trial would be permanent. The plaintiff was under the doctor's care for about seven months and the charge for his services was $100.
Mrs. Weber testified that prior to her injury she earned between $20 and $30 a week, but that she could not stand because of the soreness of her leg after it was injured and was unable to work from July 1, 1948, to February of 1949. At that time she obtained employment that did not require her to stand and she now earns $15 per week. Her leg started swelling after the injury and while the swelling has gone down to some extent she is obliged to have her leg bandaged most of the time. Some of the swelling is still present.
The only evidence offered by the defendant was the testimony of a Dr. Reuter, who examined Mrs. Weber in February, 1949. He stated that her right leg was slightly swollen from the knee to the ankle joint and that she had various blotches of small ruptured veins. She walked with a slight limitation of movement with her right leg. He stated that there were no objective symptoms of injury to her neck, but that she complained of pain when a little pressure was put upon it. From his observation of her he could detect no cause for a continued or permanent pain in her neck.
It is contended that it would be physically impossible for the plaintiff to have been injured in the manner which she described. She stated that her neck and head were caught inside the bus and that her body and legs were out as the bus started. In this she was largely corroborated by the witness who observed the accident. Defendant states that after having stepped out of the bus to the extent that her body and legs were clear of it, her neck and head would have been clear of the door. The trial court in a memorandum on a motion for a new trial stated:
"Plaintiff's testimony as to how this accident happened seems incredible but is corroborated in all essential respects by the testimony of Mr. Robert H. Gunnison, an eye witness and a reputable citizen. Mr. Gunnison testified that as plaintiff was alighting from the bus the door closed and the bus started forward, dragging plaintiff along with part of her body inside and part outside of the bus. It is not easy to see how this could happen, but accidental happenings sometimes occur in a manner that can not be purposely reenacted, and this seems to be an occurrence of that kind.
"The verdict is grossly excessive, but the Court thinks that the jury merely overestimated plaintiff's damages and were not actuated by passion and prejudice."
Plaintiff perhaps did not move with the alacrity of youth and it is not difficult to see that she might have been still holding the hand rail with her head inclined within the bus at the time the doors closed. The fact that an occurrence is unusual does not make it impossible. The only conclusion to be drawn from the evidence is that plaintiff was in some manner caught by the doors being negligently closed upon her as she was in the act of alighting and that she was pulled along by the bus starting. If she was, the defendant's negligence was clearly established.
This brings us to a related point in which it is maintained that where the court entertains doubt of any liability a new trial should be granted and a remittitur will not suffice. The legal issue presented by the point is not present in the case for the trial court's memorandum expresses no doubt of liability and the testimony presents no cause for doubt.
Appellant states that the finding of the trial court that the verdict is excessive is equivalent to holding that the verdict is contrary to the weight of the evidence and we are cited to Hunt v. Gus Gillerman Iron Metal Co., 327 Mo. 887, 39 S.W.2d 369; Stegner v. Missouri-Kansas-Texas R. Co., 333 Mo. 1182, 64 S.W.2d 691; Aut v. St. Louis Public Service Co., 238 Mo.App. 1136, 194 S.W.2d 753; Wormington v. City of Overland, Mo.App., 224 S.W.2d 590. In all of those cases the trial court granted a new trial on the ground that the verdict was either inadequate or excessive. Under such circumstances the action of the trial court is equivalent to granting a new trial on the ground that the verdict is against the weight of the evidence. However, where the amount of the verdict appears excessive to the trial court, it is not mandatory that a new trial be granted if such excessiveness can be cured by remittitur. In discussing the power of the courts to keep jury awards within reasonable limitations our Supreme Court stated in Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157, loc. cit. 159: "The exercise of this power is peculiarly within the sound discretion of the trial court inasmuch as that court may weigh the evidence as to the nature and extent of a plaintiff's injury and see the effect of the trial proceedings; the appellate court is reluctant to disturb the trial court's action in such exercise, unless it appears that the trial court has acted arbitrarily. Nevertheless, appellate courts have the power to and do reduce excessive verdicts. Mere excessiveness of the amount of the award is corrected in the trial court, and in this court, by remittitur, rather than by a retrial causing delay and expense."
The trial court who saw and heard the witnesses had before it clear and substantiated testimony regarding the extent of the injuries and the disability. In fact, some of the existing disability claimed was found to be present by the physician who examined the plaintiff on behalf of the defendant. With such evidence before it, it was not difficult for the trial court to reach what it considered a fair appraisal of the damages suffered. In view of this the case appears to be one where an excessive verdict could be properly cured by a remittitur.
The final point raised is that the judgment after remittitur is still excessive, and we are cited to Kramer v. Laspe, Mo. App., 94 S.W.2d 1090. In that case the injuries were not the same, nor was the loss of wages; but the disability suffered from the injuries was similar to some extent, and we ordered a remittitur of $1,500 from a judgment of $5,000. The sufficiency or insufficiency of a verdict must be weighed by the value of the dollar at the time the verdict was returned, and the Kramer case was decided in 1936. Considering the change in economic conditions since 1936, as we must, Petty v. Kansas City Public Service Co., 354 Mo. 823, 191 S.W.2d 653; Williamson v. Wabash R. Co., 355 Mo. 248, 196 S.W.2d 129; Marshall v. St. Louis Union Trust Co., Mo.App., 196 S.W.2d 435, the award does not seem as high as the $3,500 allowed to Kramer, and the judgment for $4,920 is not excessive.
It is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON P. J., and HUGHES and McCULLEN, JJ., concur.