Stoll v. Balazs

VICKERY, J

We have gone over this record and do not find the errors complained of, of sufficient importance to warrant a reversal of this judgment. We do think, however, that the verdict is excessive. We fear that the jury took into consideration the pain and suffering that this young man had to endure by reason of the kick of the horse, and that was no part and could be no part of a judgment that should be rendered against the attending physician, because he was in no way responsible for that.

We have gone over this whole record and we can come to no other conclusion than that the jury was justified in finding a verdict against the attending physician, and we think that the evidence is ample in the record that he did not use the usual and recognized methods of determining, just how this bone could be set. There is evidence in the record to show that even after the plaster cast was placed over the leg that an X-ray picture could have been taken through that cast, and it was not until the damage had been done, as far as the infection having taken place, that an X-ray was taken and it showed the situation which might have been avoided had this precaution been taken in the first instance.

We think, therefore, that the excessiveness of this judgment can be cured by a remittitur, and we order a.remittitur.of five thousand dollars in this verdict, leaving the same at Fifteen Thousand Dollars, and if the plaintiff accepts this remittitur the judgment will be affirmed for Fifteen Thousand Dollars. If. however, the plaintiff refuses to accept the remittitur, the judgment will be reversed on the ground that it is excessive.

Judgment affirmed, order see journal.

Sullivan, PJ, and Levine, J, concur.