Budd v. Salt Lake City R.

BARTCH, J. Tbe plaintiff brought this action to recover damages for personal injuries wbicb be claims be received through tbe negligence of tbe defendant. He alleges in bis complaint, substantially, that on July 25, 1900, while be was traveling on one of defendant’s street cars as a passenger, on a certain street in Salt Lake City, tbe car on which be was riding collided with another through tbe negligent and careless management of the company’s servants; that by tbe collision be was thrown from bis seat, and struck with his back against tbe car, and was thereby bruised, wounded, and injured, so that be became sick and sore internally and disabled permanently; and that ever since be has been, and for a long [517] time to come will be, unable to attend to bis business. In its answer tbe defendant admitted tbe collision, that tbe same was caused by tbe negligence and carelessness of its servants in managing tbe cars, and that tbe plaintiff was at tbe time a passenger on the car, but denied that he was injured by tbe collision. Under the pleadings tbe main issue was simply as to whether or not the plaintiff was injured, and, if so, to what extent, because of tbe collision. As to this issue, tbe plaintiff, at tbe trial, among other things, testified, in substance, that he was sitting on a seat in tbe car at tbe left of tbe motorman; that when tbe cars collided be was thrown from bis seat, and struck with tbe small of his back against tbe upper edge of the motor box with such force that it threw him back over tbe seat on which be bad been sitting; that be then went home; that be suffered that, night from injuries be bad received at tbe time of tbe accident, and has continued to suffer ever since; that be feels a numbness in his back and up bis spine, has pains through bis body, bis legs, and shoulders, suffers with headache, feels a dizziness, seems to have black specks floating before his eyes, has lost bis appetite, is unable to sleep, and is generally sick; that prior to tbe accident he was well and hearty, and could work every day, but since then be has been unable to work, and when be does work be soon becomes exhausted and has to quit; .that just before tbe injury be weighed 147 pounds, but shortly after only 125; that up to that time, and since be was a boy nine or ten years old, bis health was always good, and be bad no occasion to consult a physician concerning bis personal health; and that be bad none of his present ailments before tbe accident. In many important particulars tbe above testimony is corroborated by that of other witnesses, and tbe record contains other evidence of a similar character, from which it also appears that bis back was considerably bruised. Tbe witness Anderson, a physician, who examined tbe injured, in part testified: “On [518] examination of tbe body, I found over tbe back superficial bruises wbieb were beginning to disappear. On pressure, however, over tbe spinal column, I found tenderness over tbe upper dorsal and lower lumbar regions. His facial expression, as be came in, showed a careworn, melancholy appearance. He sat down in a stiff posture, resting bis arms to support himself, all of which bad a certain degree of significance. Tbe examination of tbe eyes showed a considerable diminution of tbe field of vision. The knee jerks were not equal — one wai^greater than tbe other. On testing tbe sensation, I found over bis back cértain areas where be could not distinguish tbe difference between tbe head and tbe ’point of a pin, given a moderate pressure. In regard to the circulation, I found that extremely sensitive to fatigue. Having him walk to tbe bottom of -mv steps and back, about twenty steps, would almost double tbe pulse rate. He would come back freely perspiring, something which would not happen to any ordinary man. These, with certain subjective symptoms which I was able to elicit, constituted my examination. The examination of the heart showed no abnormal symptoms. The examination of the urine showed no kidney disease. The examination of the stomach’s contents at a later time showed the stomach to have the usual ferments and acids. By pressure over the tender areas of the spine, the pulse rate could be markedly increased.” In conflict with a part of the foregoing testimony is some introduced by the defendant, principally that of the witness Oglesby, to the effect that the plaintiff' was afflicted with his present ailments, and which constituted the injuries complained of, before the happening of the accident. At the trial the jury returned a verdict in favor of the plaintiff for $2,500 and for costs, and judgment was entered accordingly. A motion for a new trial was then made and overruled. It is contended that the court erred in not setting aside the verdict of the jury as being excessive, and having been [519] rendered under tbe influence of passion or prejudice. This contention can not avail the appellant. As may be seen from the evidence above referred to and from other testimony in the record, there is a conflict as to what extent the plaintiff was injured by the collision, or on the point as to whether he was afflicted with his present ailments before the collision occurred. The question of damages for such injuries was therefore exclusively within the province of the trial court and jury, this being a case at law, and under such circumstances we have not power to interfere with the verdict upon the ground that it is excessive. ■ In such a case, where, as here, there is evidence in support of the verdict, we are conclusively bound by the judgment of the trial court and jury on the question of damages, as well as on any other question of fact. It has been repeatedly so held by this court, and it is no longer an open question in this State. It is therefore useless to longer incumber the records with such questions in such cases. This court will not interfere with the verdict of a jury, unless there is no legitimate proof to support it. Mangum v. Mining Co., 15 Utah 534, 50 Pac. 834; Nelson v. Southern Pac. Co., 15 Utah 325, 49 Pac. 644; Anderson v. Mining Co., 15 Utah 22, 49 Pac. 126; Murray v. Railroad Co., 16 Utah 356, 52 Pac. 596; Harrington v. Mining Co., 17 Utah 300, 53 Pac. 737; Stoll v. Mining Co., 19 Utah 271, 57 Pac. 295; State v. Endsley, 19 Utah 478, 57 Pac. 430; Smith v. Droubay, 20 Utah 443, 58 Pac. 1112. It is also insisted for the appellant that the court erred in permitting the witness Dr. Anderson to give his opinion as to what per cent, of the people afflicted, as the plaintiff is, with nervous prostration or neurasthenia, recover permanently. The objection to this testimony was based on the ground that the witness was not shown to be competent to •give such an opinion. As to whether or not a witness is com [520] petent to testify as an expert is a question of fact, witbin tbe sound discretion of tbe trial judge, and bis determination will not be reviewed or disturbed, unless a palpable abuse of discretion is disclosed. State v. Webb, 18 Utah 441, 56 Pac. 159. In tbis case no sucb abuse is shown in tbe record. After baving testified as to bis professional qualifications and experience, tbe witness was permitted to testify, without objection, as appears, respecting the plaintiff’s injuries, disease, and condition, and baving so testified, tbe court did not err in permitting him to give bis opinion as to what percentage of sucb patients ultimately recover their health, since tbis bad a direct bearing upon tbe permanency of tbe disease, which it was claimed resulted from tbe injuries. Cole v. Railway Co., 95 Mich. 77, 54 N. W. 638; McClain v. Railroad Co., 116 N. Y. 459, 22 N. E. 1062; Railroad Co. v. Crist, 116 Ind. 446, 19 N. E. 310, 2 L. R. A. 450, 9 Am. St. Rep. 865; Mangum v Mining Co., 15 Utah 534, 50 Pac. 834; Railway Co. v. Burnett, 80 Tex. 536, 16 S. W. 320; Railroad Co. v. Latimer, 128 Ill. 163, 21 N. E. 7; Hammond v. Woodman, 66 Am. Dec. 219, 234. Nor did tbe court err in permitting tbe expert witness to testify as to bow long a person under similar conditions would probably suffer and be unable to work. It was clearly competent for tbe witness to so testify, baving already testified to tbe condition of tbe injured. Abbot v. Dwinnell, 74 Wis. 514, 43 N. W. 496; Hammond v. Woodman, 66 Am. Dec. 235. It is not deemed important to discuss any other question presented. We find no prejudicial error in tbe record. Tbe judgment is affirmed, with costs. Miner, G. Jv and Baskin, Jconcur.