Nix v. Gulf, Mobile & Ohio Railroad , 362 Mo. 187 ( 1951 )

LOZIER, C.

This is an action to recover for personál injuries. Plaintiff had a $20,000 verdict against the defendant, Gulf, Mobile & Ohio Railroad Company (hereinafter referred to as the railroad). The jury found in favor of the other defendant, Kansas City Terminal Railway Company (hereinafter referred to as the terminal). The trial court ordered an $8,000 remittitur, which plaintiff refused to enter. The railroad’s motion for a- new trial was sustained on'the ground that the verdict was excessive. This appeal is from that order.

The terminal’s motion here to dismiss this 'appeal as to it, taken with the case, is sustained. Verdict was for plaintiff and against the railroad and for the terminal and against plaintiff. Judgment was entered accordingly. Plaintiff filed no motion for a new trial as to the terminal. The railroad’s motion for a new trial was directed against the verdict and judgment as to it, and asked no relief against the judgment in favor of the terminal. Plaintiff appealed only from the order sustaining the railroad’s motion and the railroad did not appeal from the judgment in favor of the terminal. Thus, the terminal is not a party in this appeal.

'It n.either appears nor was argued here that plaintiff’s right of recovery would be limited to a judgment against the defendants jointly. Compare Cameron v. Howerton, (Mo. Sup.) 174 SW 2d 206. The trial theory of each defendant, as shown by their requested given instructions, respectively, would justify a verdict against its' codefendant alone.' Granting the railroad a new trial as to it did not necessitate granting a new trial as to the terminal, and the judgment in favor of the terminal was not affected by the sustention of the railroad’s motion. 66 CJS, “New Trial,” Sec. 12, p. 100; Hunt v. Kansas City, (Mo. App.) 114 SW 2d 153; Fitzpatrick v. Sheppard, 346 Pa. 240, 29 A. 2d 475; and United Retail Cleaners & Tailors Assn. v. Denahan, (D. C. Mun. Ct. of App.) 44 A. 2d 69. See also Grimes v. Red Line Service, 337 Mo. 743, 85 SW 2d 767.

The principal issue is whether the trial court abused its discretion in ordering the remittitur, and, upon plaintiff’s refusal to comply, in granting a new trial on the ground of excessiveness of the verdict. Plaintiff’s position, as stated in his brief, is: “Appellant is not unmindful of the general rule that the order of a trial judge with reference to the amount of the verdict will be disturbed upon appeal only where it is shown the trial judge abused his discretion. We strongly urge, however, that this ease falls within the classification and the record clearly indicates that the trial judge did abuse his discretion by ordering the remittitur.”

Before summarizing the evidence, we restate the principles governing an appellate court’s review of a trial court’s order granting a new trial on the ground that the verdict was either excessive or inadequate. Such an order is the equivalent of the granting of a new trial upon the ground that the verdict is against the weight of the evidence. Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 171 SW 2d 610; Sofian v. Douglas, 324 Mo. 258, 23 SW 2d 126; Lang v. St. Louis Public Service Co., (Mo. App.) 204 SW 2d 504; O’Shea v. Pattison-McGrath Dental Supplies, 352 Mo. 855, 180 SW 2d 19; and Mitchell v. Pla-Mor, Inc., 361 Mo. 946, 237 SW 2d 189, and Steuernagel v. St. Louis Public Service, 361 Mo. 1066, 238 SW 2d 426, decided concurrently herewith.

In ruling a motion for a new trial, a trial court is vested with a wide discretion. This is particularly important where the motion has been sustained because of the amount of the verdict, or, has been determined after consideration of the weight of the evidence. O’Shea v. Pattison-McGrath Dental Supplies, Lang v. St. Louis Public Service Co., Mitchell v. Pla-Mor, Inc., and Steuernagel v. St. Louis Public Service Co., supra; Moss v. May Department Stores, (Mo. App.) 31 SW 2d 566; Reichmuth v. Adler, 348 Mo. 812, 155 SW 2d 181; and De Maire v. Thompson, 359 Mo. 457, 222 SW 2d 93.

So, while this court has not weighed the evidence relating to plaintiff’s disabilities, we have examined the record to determine whether there was substantial evidence to sustain the trial court’s view that such disabilities were not as serious or as permanent as claimed or that some of the disabilities did not result from the accident. Riche v. City of St. Joseph, 326 Mo. 691, 32 SW 2d 578; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 SW 2d 458; Albert H. Hoppe, Inc. v. St. Louis Public Service Co., (Mo. App.) 227 SW 2d 499; Green v. First National Bank of Kansas City, 236 Mo. App. 1257, 163 SW 2d 788; and Esselmann v. Devereux, (Mo. App.) 78 SW 2d 515.

Plaintiff asserts that “in reviewing the matter of damages on appeal, the evidence is viewed in the light most favorable to the plaintiff,” citing Osburn v. K. C. Southern Ry. Co., 360 Mo. 813, 230 SW 2d 856. A single sentence in that opinion and a statement in Dodd v. Missouri-Kansas-Texas R. Co., 354 Mo. 1205, 193 SW 2d 905, appear to support plaintiff’s contention.. However, examination of these two decisions shows that, in both instances, this court reviewed the evideuce in the light most favorable to sustaining the ruling of the trial court. See Steuernagel v. St. Louis Public Service Co., Murphy v. Kroger Grocery & Baking Co., and Mitchell v. Pla-Mor, Inc., supra.

The rule urged by plaintiff does not apply to an appellate court’s review of a trial court’s ruling involving the power of the trial court to weigh the evidence — including that of the amount of damages. Sofian v. Douglas, Murphy v. Kroger Grocery & Baking Co., Lang v. St. Louis Public Service Co., O’Shea v. Pattison-McGrath Dental Supplies, Mitchell v. Pla-Mor, Inc., and Steuernagel v. St. Louis Public Service Co., supra. In the instant case, it is not our duty to consider the evidence in the light most favorable to plaintiff. Our obligation is to determine, whether the trial juclge, who weighed all the evidence, abused bis discretion. In other words, we are not exercising discretion; we are only determining whether the trial judge, in the exercise of his discretion, was guilty of an abuse of discretion.

Plaintiff, 52 years .old at trial time, sustained his injuries on February 16, 1948. He was a railway mail clerk, and was working that evening in a combination mail-baggage car in one of the railroad’s trains in the Kansas City Union Station. This train was standing upon tracks, part of the terminal’s union station terminal facilities, over which the railroad had been granted the right to operate its (the railroad’s) trains. The mail car was near the “head” or east end. Prior to the scheduled departure time, 11 p. m., plaintiff was working in the mail car, near the loading door on the south side of the car, being engaged in loading mail sacks and pouches.

About 11 p. m., a locomotive, owned by the railroad and. operated by its employees, backed in on these tracks from the east and coupled onto the train. The coupling was rough and caused the train to lurch and jerk violently. At the moment of impact, plaintiff was facing the open loading door and had just stooped over to' pick up a mail pouch on the floor. He was thrown to the east and fell headlong, the left side of his head striking the base of an iron stanchion.

In ruling the issue of the claimed excessiveness of the $20,000 verdict, the trial court was required to weigh all the evidence relating to the nature,. extent and cause of plaintiff’s injuries. Plaintiff’s testimony was that: he. was knocked unconscious and remained so for a short time; after regaining consciousness, he was dazed until after the train left the station; he made his usual “run” terminating the next morning at Springfield, Illinois; he made the return run-to Kansas City that night; the night of the accident he was not able to do his work properly and lay down part of the time; he had a bump above his left ear; his right arm was “badly jammed up”, his back was sore and his neck was stiff; he suffered severe headache that night and the following day; he continued his work as a railway mail clerk until July 13, 1948, but was able to make only about one-half of his runs; he resigned in July, 1948, because he could not do the work properly; lie continued to have severe headaches and at times suffered from blurred vision and dizziness; his back is weak phis right arm does not function properly and-he cannot raise it'abové his head-without severe pain; the fingers of his right hand fumble and seem to' be “kind of semi-paralyzed”; he lost about 35 pounds in weight and has trouble sleeping; he has not been able to work since July, 1948, or to do gardening or carpenter work around his house. '

Plaintiff did not see a physician until approximately a month' after the accident when he was examined by a government doctor at the request of the district superintendent of mails. Ih April, 1948, he' was twice examined by Dr. A. L. Skoog. Dr. Skoog examined him a third time in December, 1949, shortly before the trial. In August and September, 1948, he went to a Dr. Zeilinger two or three times and this doctor prescribed'rest. :On December 9 and 10, 1949, he was examined by Dr. B. A. Poorman. None of the doctors plaintiff consulted and who examined him either took X-ray pictures or prescribed-a course of treatment.

Dr. Skoog and Dr. Poorman testified for plaintiff. Dr. Skoog, a specialist in nervous and mental diseases, described his" examinations. He found a definite weakness in plaintiff’s right hand and forearm; tests showed a decline-in “motor power,” especially on the right side; all of the deep reflexes were increased; and there was impaired sensation on the right side of the right arm from the shoulder down. Dr. Skoog’s conclusion was that plaintiff “has injury to the brain diffused through all of the cerebrum” and also had suffered “trauma, pulling or concussion of the brachial plexus.” Dr. Skoog believed that at the time of his last-examination plaintiff had more disability than in April, 1948. In his opinion; plaintiff was not physically able to work and his condition was- not only permanent but would get progressively worse.

Dr. Poorman, a general surgeon, examined plaintiff at Dr. Skoog’s' request. Dr. Poorman testified to these findings: plaintiff had some enlargement of the left frontal part of the head; there was a delicate tremor of the'eyelids; the ciliary muscle responded slowly;' the right side of the neck and the right shoulder weré rigid and under' tension; there was limitation of motion in the right shohlder and upper arm, tenderness around the right elbow and loss of grip in the right hand; and the back was stiff and rigid, particularly on the right side. This doctor’s conclusion was that plaintiff had: traumatic concussion of the brain; a traumatic condition 'of the brachial plexus; neuritis of the group of nerves that go to the elbow; fibrosis of the shoulder joint; injury to ligaments around the right elbow; strained' and contused muscles and ligaments of the lower back; injury to muscles in the neck region; and injury to the brain cells. In his opinion, all of these conditions were due to injuries suffered in the accident, were permanent and would get progressively worse.

Dr. F. C. Helwig examined plaintiff at the request of the defendants. According to his testimony, he made a complete physical examination, including' laboratory and X-ray studies. He found no atrophy of the right arm and shoulder, but did find a definite limitation of motion and awkward movements of the right arm. He found some limitation of motion of the back but no muscle spasm. There was tenderness over the thoracic spine and the right side of the neck. He found plaintiff’s teeth in bad condition with extensive caries and pyorrhea. He found no abnormalties of the skull. The reactions and reflexes of the peripheral nerves were normal. The laboratory studies were negative. X-rays showed arthritic changes of the cervical spine, and marked decay of and absorption around the teeth. Dr. Helwig was unable to find any cause for the condition of plaintiff’s right arm except the state of his teeth and the arthritic changes in his spine. It was his opinion that all of plaintiff’s teeth should be extracted. lie felt that plaintiff’s teeth could readily have caused the arthritis and he could find no cause for the limitation of motion of the neck and back except the arthritic spinal condition.

Dr. E. H. Trowbridge, Jr., a specialist in neurology, psychiatry and electroencephalography, testified for the defendants. An electroencephalograph recording of plaintiff’s brain indicated a normal brain condition.

In brief, plaintiff’s evidence tended to show that his disability resulted from the accident. Defendants ’ evidence tended to show that plaintiff .had not sustained permanent injuries to his brain or central nervous system, and that these were normal at trial time; also, that the condition of plaintiff’s arm, neck and back was due to his teeth and the resulting spinal arthritis.

Thus, the testimony as to' the nature, extent and cause of plaintiff’s disability was in sharp conflict. The trial judge weighed all this evidence. He observed plaintiff and the medical experts and heard them testify. We cannot find that he abused his discretion, either in ordering the remittitur or in granting the railroad a new trial. See Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 SW 2d 674, decided concurrently herewith.

The railroad has here urged reasons other than excessiveness of verdict why a new trial should have been granted. We need not consider these matters as it is unlikely that the alleged errors will recur in a new trial against the railroad alone.

However, we may observe that plaintiff’s status, as a railway mail clerk assigned to the railroad’s train, was that of a passenger. He is entitled to recover for personal injuries received by him “under the same circumstances which would have authorized recovery by an ordinary fare-paying passenger.” 13 CJS, “Carriers,” See. 548, p. 1052; Mellor v. Mo. Pac. R. Co., 105 Mo. 455, 16 SW 849, 10 LRA 36; and Bond v. St. Louis-San Francisco R. Co., 315 Mo. 987, 288 SW 777. His passenger status ivas not affected by the fact that, when the accident occurred, he was working in a mail car in a train standing in a station. Baltimore & Ohio R. Co. v. Davis, 152 Md. 427, 137 A. 30.

The appeal is dismissed as to the terminal and the order granting a new trial as to the railroad is affirmed.

Van Osdol and Aschemeyer, CC., concur.

PER CURIAM:

The foregoing opinion by Lozier, C., is adopted as the opinion of the court.

All the judges concur.