Randall v. First National Bank

Hamer, J. This is an action to recover for personal'injuries. It was brought by Susannah Bandall, a married woman, against the First National Bank of David City, Nebraska. The suit was commenced by the plaintiff in her lifetime. She alleged that the defendant was •negligent in maintaining a stairway through which she fell, and by reason of which fall she claimed to have been seriously and permanently injured. A trial in the district court for Butler county resulted in a verdict and judgment in plaintiff’s favor for $3;500. The defendant has appealed. Since the appeal was perfected the plaintiff departed this life, and the action has been revived in the name of Henry Bandall, the administrator of her estate. The title .of the case as originally brought is retained in this opinion. It is shown by the evidence that the plaintiff’s husband rented a two-story building in David City from the defendant bank; in the front part of the first story the husband appears to have maintained a shoe repair shop, and the back part was used by the family as a kitchen; the second story was used by the family as a sitting-room and for sleeping apartments; on the outside of a building just north of the building so used by the plaintiff’s husband and herself the defendant maintained a stairway which led to the second story of said building and was connected with the building used by the plaintiff and her husband by a platform which led to their sleeping rooms. It is also shown that there was a stairway going down from these sleeping rooms on the inside of the building to the kitchen. The plaintiff was accustomed to use either stairway. The [477] defendant denied that the stairway was negligently constructed, and denied any knowledge as to its condition. On the evening of the 30th day of September, 1913, while the plaintiff’s husband was assisting her up said outside stairway in order to get to their sleeping rooms, the eleventh step from the bottom gave way, and they both fell through said stairs to the ground, or fell upon said stairway, and the plaintiff was seriously and permanently injured. It is strenuously contended by the defendant that the damages are excessive. -It is also contended that the verdict is not sustained by sufficient evidence. The evidence shows that prior to the time of the alleged injury the plaintiff was an invalid, and that she spent the previous winter in Florida for the purpose of regaining her health, if possible. When she, went to Florida she was afflicted with diabetes and sciatic rheumatism. She appeared some better on' her return, but was not cured. There was a sharp conflict in the evidence, and it was for the jury to, determine which of the witnesses were worthy of belief. The plaintiff testified concerning the manner in which the injury happened. She describes her injury to the right leg as it would be if paralyzed, and also testified-to her back hurting her, and also her head. She also described her condition' before she received the injury as such that she could use her right leg and “walk all over town.” She also described the outside stairway as used for the purpose of reaching rooms in both of these buildings; that there was a platform which led to their rooms and to other rooms; that the platform appears to have connected the two buildings; that there were several tenants there during the time that she and her husband lived in the building, and that these tenants used the same stairs that she and her husband used. The outside stairway appears to have been a common stairway for the use of all the tenants. [478] It may be that the physical condition of the plaintiff was snch that she might have died in the not remote future even if she had not received the injury, but that she was hurt and that she suffered in consequence cannot well be doubted under the evidence. The court heard this evidence and sustained the verdict and denied the motion-for a new trial. The jury saw her and heard her testify, and .also heard the other witnesses testify. In Shirley v. City of Minden, 84 Neb. 544, the judgment of .the district court was affirmed. The syllabus in City of Omaha v. Houlihan, 72 Neb. 326, was quoted with approval, where it is said: “Issues as to the the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for .the jury to determine, when the evidence as to the facts is conflicting, and where different minds' might reasonably draw different i conclusions as. to these questions from the facts established.” “Where, in an action at law, the evidence is conflicting, it is not the province of this court to examine it further than to see that there is sufficient to justify the conclusion reached.” Young v. Kinney, 85 Neb. 131. The condition of the record does not seem torequire .further discussion of the case. We cannot say that'the injury did not hasten her death, and yet, while the jury by its ' verdict found for the plaintiff upon evidence sufficient to sustain a verdict for such plaintiff, we are nevertheless constrained to believe that the verdict is, under all the circumstances, excessive, and, unless. the plaintiff files a remittitur of $2,500 within 30 days,, the judgment of the district court will be reversed and the cause remanded for further proceedings. As thus modified, the judgment of the district court is Affirmed: