Wilburn v. U. S. Gypsum Co.

BARNARD, P. J.

The plaintiff was injured on May 15, 1931, by an automobile owned by the corporate defendant and driven by the individual defendant. On the first trial a jury awarded him $25,926 and a new trial was granted. A second trial resulted in a verdict for $13,187 and a new trial was granted because the plaintiff refused to reduce the amount to $8,000. On the third trial the defendants admitted liability and the only issue submitted was as to the amount of damages. The defendants stipulated to doctor’s bills in the sum of $175 and to $550 as the amount of damage to the plaintiff’s automobile. A jury brought in a verdict for these two items plus an allowance of $13,550 for personal injuries, a total of $14,275. A motion for a new trial was denied and the defendants have taken this appeal.

The appellants argue that the court erred in permitting certain X-ray pictures to be introduced in evidence, for the reason that they were taken nearly four years after the accident. This objection is without merit.

The main point urged by the appellants is that the amount allowed for personal injuries is excessive, it being contended that the same is so grossly disproportionate to any amount warranted by the evidence as to shock the sense of. justice and to raise the presumption that the verdict was based on prejudice and passion rather than on sober judgment.

The plaintiff testified that he had been able to do “very little” work after the accident. When asked if he had done some work he replied: “I sewed sacks in a seed house at Wellton, Arizona.” When asked if he had ever done any hard work since the accident he replied: “Not what I would call hard work. Compared with what I was able to do be

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fore it was merely exercise. ’ ’ However, the man who ran the seed house testified, without contradiction, that from July, 1933, to May, 1934, the respondent worked for - him whenever he had work to be done; that he worked a few days in July, 27 days in August, 17 days in September, 19 in October, 4 in November, 4 in February, 12 in March, and 18 in May; that his work consisted of emptying sacks of uncleaned alfalfa seed, filling the sacks with the cleaned seed, and moving and stacking up the filled sacks; and that these sacks weighed 160 pounds before the seed was cleaned and 175 pounds thereafter. While the respondent may not call this hard work it at least indicates that he was not entirely incapacitated. The respondent was 51 years old at the time of the accident and according to the only evidence of his earning capacity shown by the record the jury allowed him his full earnings for about twenty years.