Murphy v. Town of Cleveland

Need, J., delivered the opinion of the court. On November 18, 1909, appellant was walking along a plank sidewalk in the town of Cleveland, accompanied by Mr. Dumas, a friend. He stepped on a plank which was not properly fastened or nailed down and which flew up and caused appellant to trip and fall prone on the walk. Her right shoulder was dislocated and her left knee bruised by the fall.' She brought suit for eight thousand dollars, and the jury returned a verdict in her favor for one hundred dollars. The only error assigned in this appeal is that the verdict of the jury is entirely inadequate. Appellant testified that she suffered severe pain from the injury; that she was confined for a time to bed, was disabled to a considerable extent for several months; that she had been under treatment of several physicians, attended by some expense; that she still suffered from the injury, and has not regained strength in her right arm, and is still deprived of the full use thereof. The doctor who first attended her after she was injured testified that her right shoulder was dislocated; that she suffered pain therefrom; that he had examined her a few days before he testified in March, 1912, and found an incomplete motion in the arm and incomplete strength therein; that the arm was still partially out of the socket and in his judgment will never get back properly therein; that she will never fully regain the use of the arm as it was before the injury; that she will continue to suffer pain therein; and that the injury from the dislocation is permanent. No testimony was introduced by the appellee to contradict the evidence of the appellant showing the injury she suffered. It does not appear that the injury to ap [275] pellant’s knee was serious, though she testified that she suffered considerable pain therefrom. Appellant was about fifty-eight years of age when she sustained the injury. After considering the testimony in this case, we conclude that the verdict for one hundred dollars is inadequate ; in fact so much so that the judgment should not be permitted to stand. The judgment is therefore reversed in so far as it adjudges the amount of damages to be recovered, but in all other respects shall remain in full force and effect; and this cause is remanded for the purpose only of adjudging the amount of damages to be recovered by appellant. Cook, J., took no part in the decision of this case. Reversed and remanded.