
    GORHAM, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Respondent.
    St. Louis Court of Appeals,
    April 4, 1905.
    PRACTICE: New Trial: Inadequate Verdict. In an action for personal injuries, where the evidence for defendant showed that the plaintiff received merely a severe scalp wound by which his skull was exposed, that he was disabled about three months, and plaintiff’s evidence showed that he was earning about $120 a month, a verdict for $300, which was approved by the trial court by overruling a motion to set it aside, will not be disturbed by the appellate court, on the ground that it is inadequate.
    Appeal from St. Louis County Circuit Court. — Eon. John W. MoElhinney, Judge.
    Affirmed.
    
      
      Ernest E. Wood for plaintiff.
    In the case at bar there can be no question but that great injustice was done the plaintiff by the verdict rendered by the jury. The verdict of $800 is so grossly inadequate that it is shocking to the intelligence of anyone who will read the evidence or who knows of the facts in the above-entitled cause. There can be no question but that a new trial will be granted where the verdict is insufficient, exactly as it will be where the verdict is excessive. Lee v. Knapp & Co., 137 Mo. 335, 38 S. W. 1107; Boggess v. Railroad, 118 Mo. 327, 23 S. W. 159, 24 S. W. 210; Eberhardt v. Railroad, 69 App. Div. N. Y. 561; Morrissey v. Railroad, 30 App. Div. N. Y. 424; McDonald v. Walter, 40 N. Y. 554; Kelly v. City of Rochester, 15 N. Y. Sup. 29; Meyer v. Hart, 23 App. Div. N. Y. 131; Sapuston v. Railway, 25 App. Div. N. Y. 285; Bradwell v. Railway, 139 Pa. 413.
    
      Martin L. Glardy and Henry G. Herbel for respondent.
    (1) While it is the settled practice of the Federal appellate courts, and that of many of the State courts, to refuse to review the ruling of a trial court on a motion for a new trial, we admit that the appellate courts of this State have that power, but exercise it sparingly, and it is only when the conviction that the weight of the evidence was so overwhelmingly against the verdict as to force the conclusion that the jury’s finding was necessarily the result of passion, prejudice or corruption, that they assume to interfere with the discretion which the statute has, for obvious reasons, wisely lodged with the tidal judge. Reed v. Insurance Co., 58 Mo. 429; Hull v. Railway, 60 Mo. App. 597; Feary v. Railway, 162 Mo. 107, 62 S. W. 452; Railway v. McElroy, 61 S. W. 874. (2) That an appellate court Ayill not, in the absence of proof that the jury was influenced by improper motives, no matter what the character of the injury, reverse a judgment solely on the ground of inadequacy, when it has been approved by the trial judge, has grown axiomatic. Pritchard v. Hewitt, 91 M'o. 547-550, 4 S. W. 437; Dowd v. Air Brake Co., 132 Mo’. 579, 34 S. W. 493; Gregory v. Chambers, 78 Mo. 298; Bank v. Wood, 124 Mo. 76, 27 S. W. 554; Schroed-er v. Railway, 108 Mo. 326, 18 S. W. 1094; McAfee v. Ryan, 11 Mo. 365; Steamboat City of Memphis v. Matthews, 28 Mo. 248; Dodd v. Guiseffi, 100 Mo. App. 311, 73 S. W. 304; Brooks v. Railway, 98 Mo. App. 175, 71 S. W. 1083; Dulaney v. Sugar Co., 42 M'o. App. 662.
   GOODE, J.

This plaintiff, who was a locomotive fireman in the employ of the defendant company, was injured in a collision. He sued for damages and obtained a verdict for $300. Judgment was entered ac cordingly and plaintiff appealed.

The contention is that a retrial should be ordered on account of the inadequacy of the verdict. There was conflict in the testimony as to the extent of the injury' plaintiff received in the accident. Two or three doctors testified in behalf of the plaintiff that his skull was fractured and the fingers of his right hand partially paralyzed as the result of the injury, besides temporary impairment of one eye. Several doctors testified in behalf of the defendant that the plaintiff only received a severe scalp wound by which the skull was exposed, but not fractured, and that he was not at all paralyzed. It is conceded by the plaintiff’s counsel that as the jury had the right to believe the testimony for the defendant, this appeal must be disposed of by determining from that testimony whether or not the verdict was so grossly unjust that it ought to be set aside. It is contended in behalf of the defendant that the plaintiff feigned paralysis of the fingers of his right hand, and if the testimony in its behalf is true, that inference would be fair. The physician who gave plaintiff first assistance immediately after the accident happened, swore positively that he examined plaintiff’s skull and it was not fractured. Other competent physicians swore there was no paralysis of the right hand or any other part of the plaintiff’s body. Plaintiff himself swore he was earning about $120 a month. It is in proof that he was confined to the hospital for two months, and when discharged, was expected by the physician who attended him to be ready for work in about four weeks. This evidence would go to show plaintiff was disabled for three months. The argument of his counsel is that it conclusively appears the plaintiff was not awarded sufficient damages for his loss of time, to say nothing of his suffering. The jury was entitled to disbelieve his statement that he was earning $120 a month; and, moreover, he would necessarily have to meet some expenses out of .his monthly wages. He was treated while suffering from his injuries at the defendant’s hospital. The foregoing we regard as a fair statement of the facts and we are free to say that to' our minds this verdict looks too small. But in disposing of the appeal we must have regard to the rule of law involved and especially to the decisions of our Supreme Court. There is an authority directly bearing on this proposition, which we consider fatal to the plaintiff’s appeal.

In Dowd v. Air Brake Co., 132 Mo. 579, 34 S. W. 493, it appeared that the plaintiff therein, at the time he was hurt, was 25 years old. While engaged in making an excavation under the orders of the defendant company’s foreman, the earth caved in and an embankment fell on him and injured his spine, arm' and 1 eg. The injury to his leg was a compound fracture and the limb was stiff at the time of the trial. He was awarded one hundred dollars. The only ground insisted on for a reversal of the judgment was the inadequacy of the verdict, which was said to have resulted from bias, prejudice and passion on the part of the jury. The Supreme Court said a small verdict had been given, but that- the amount of damages to he awarded was for the jury to determine, as it had the opportunity of seeing the witnesses face to face and observing their demeanor while on the stand; that the verdict was subject to review and correction by the trial judge, who had the same opportunities, and the appellate court could not interfere unless it was prepared to say passion and prejudice induced the finding. The court went on to state that a new trial could not be granted on appeal solely on the ground of the smallness of the damages awarded; citing Pritchard v. Hewitt, 91 Mo. 547, 4 S. W. 437.

The verdict which the Supreme Court allowed to stand was more open to doubt than is the present verdict. It is a very delicate matter for an appellate tribunal to reverse the ruling of the trial court and the verdict of the jury in instances of this kind; because many impressions regarding the extent of the injuries and the loss may be gleaned on the trial, which cannot be known from the record. We consider it palpable that we have no right to interfere in this instance in view of the decision of the Supreme Court in the case above cited; which, indeed, is according to the law prevalent in other States.

The judgment is, therefore, affirmed.

All concur.  