Welborn v. Metropolitan Street Railway Co.

ELLISON, J. — Plaintiff’s action is for personal injuries received while a passenger on one of defendant’s street ears in Kansas City. The judgment in the trial court was for .her. Accepting the verdict as establishing the facts as the evidence in plaintiff’s behalf tended to prove, we find that plaintiff was injured in attempting to alight from defendant’s car after it had stopped for the purpose of discharging passengers. While she was making such attempt to step from the platform, the car suddenly started and threw her violently to the pavement. There was ample evidence to sustain a finding of negligence in starting the car before plaintiff had accomplished her effort to alight. The case was properly submitted to the jury under instructions which, though objected to, are without fault. One of these instructions stated that plaintiff might recover for such suffering as the jury might believe from the evidence she in all “probability” would endure in the future. The objection is to the word “probability.” The word was used in an instruction in Devoy v. St. Louis Transit Co., 192 Mo. 197, which received the approval of the Supreme Court. [See also Reynolds v. St. Louis Transit Co., 189 Mo. 408.] There is no substance to objections made to other instructions. The criticism on No. 4 as to definition of preponderance of the evidence, is extreme technicality. We think No. 3 is without fault. The only matter of doubt involved in the appeal is the charge of excessiveness of the verdict, which was for $7500. There was a former trial in which it seems to be conceded the verdict was only $750. Verdicts of different juries on the same case, where the [354] amount to be found is not fixed by mathematical calculation, will quite naturally be for unlike amounts, and therefore the verdict of one jury will not control the court in passing upon the reasonableness of the verdict of a subsequent jury in the same ease. Yet in a difference of such magnitude as here shown, it is enough to excite attention. We have gone over the evidence as to the character of plaintiff’s injuries, and while they were shown to be serious, they are not, in our judgment, of such aggravated nature as to justify so large a sum. No limbs were lost and no disfigurement has resulted. There was a dislocation at the hip and of some of the ribs. Believing the verdict to be beyond the pale of reason, we must reverse the judgment and remand the cause unless a remittitur of $3500 be made within ten days. If that is done, the judgment will be affirmed. All concur.