Taylor v. Missouri Pacific Railroad

279 S.W. 115, 311 Mo. 604, 1925 Mo. LEXIS 474

• Court: Supreme Court of Missouri
• Decided: December 22, 1925
• Status: Published

Opinion

WHITE, J.

The appeal is from a judgment in favor of the plaintiff rendered September 29,1922, in the Circuit Court of Cape Girardeau County, for $50,000, for personal injuries.

On February 20, 1921, the plaintiff, at the town of Lutesville in Bollinger County, took passage on one of the defendant’s trains for the purpose of going to Marquand. When the train stopped at Marquand the plaintiff in attempting to alight from the car slipped upon the steps and fell, incurring severe injury for which he sued. The train came north through Charleston, in Mississippi County; it had snowed the day before. Plain tiff introduced evidence to show that at different points on the road, particularly at Lutesville, Marquand and stations between, the steps were covered with a thick coating of ice and snow.

The defendant introduced evidence tending to show that the car in which plaintiff rode was a vestibule car, so constructed that the steps were protected and snow could not fall upon them; that any snow which was upon the steps on that day was carried there on the feet of the passengers entering the train; that at Charleston the steps were thoroughly cleaned, and at other places on the road wherever necessary. •

On a former trial of the cause a verdict was returned and judgment rendered in favor of the plaintiff for $50,000, which the trial judge set aside on the ground that the verdict was excessive. The facts in relation to the alleged negligence of the defendant and the extent of plaintiff’s injuries will be considered in determining the law affecting those facts.

The petition originally was filed June 2, 1921, in Bollinger County, and entitled: J. A. Taylor v. Missouri Pacific Railway Company. The summons was issued to the Missouri Pacific Railway Company, and the sheriff’s return showed service June 3, 1921, by delivering a copy of the writ and petition to “P. R. Bailey, Station Agent at Lutesville, in said county, of said defendant corporation he being then and there in said defendant’s usual business office and in charge thereof, the president or other chief officer of said Missouri Pacific Railway Company not having been found in the County of Bollinger.”

On September 12 1921, the defendant named in the petition, the Missouri Pacific Railway Company, filed an application for a change of venue from Bollinger County. On the same day that defendant, appearing only for the purpose, filed a plea in abatement, alleging that the court was without jurisdiction of the defendant. In that plea it was alleged that all the property of the Missouri Pacific Railway Company had been sold by decree of the Federal court, and that company had not, since March 19, 1917, owned, controlled nor operated any railroad in the State of Missouri, and on the third day of June, 1921, had no agent in Bollinger County, Missouri, nor for four years prior to said date had maintained or operated any railroad through Bollinger County.

Change of venue was awarded to Cape Girardeau County. In the Cape Girardeau court, January 6, 1922, the plaintiff filed a motion asking leave to amend his petition, and the summons correcting a clerical error in the name of the defendant, changing it from the Missouri Pacific Railway Company to the Missouri Pacific Railroad Company. It was alleged in the motion that the Missouri Pacific Railroad Company was in truth the corporation sued and intended to be sued by the plaintiff, and it was actually served with process. That the Missouri Pacific Railroad Company was the corporation operating the trains mentioned in plaintiff’s petition; that neither at the time the plaintiff was injured nor at the time the suit was filed nor when the original writ was issued and served was there any corporation by the name of Missouri Pacific Railway Company operating a railroad or trains, or maintaining officers in Bollinger County or in the State of Missouri; that the Missouri Pacific Railroad Company was the successor of the Missouri Pacific Railway Company had acquired its assets and assumed all its liabilities, and at the time the plaintiff was injured was operating the trains which prior thereto had been operated by the Railway Company. The abstract of respondent recites that the court took evidence offered by the plaintiff in support of the motion. No objection appears to that recital. The plaintiff also filed a motion asking leave to have the sheriff amend his return. The court sustained the motions, and allowed the plaintiff to amend his petition and the summons by the substitution of the word “Railroad” instead of “Railway” as it appeared in the name of the defendant. The sheriff also by leave amended-his return so as to show, as in the original return, that the service was had- on P. R. Bailey, station agent at Lntesville, of the Missouri Pacific Railroad Company.' The appellant, the Railroad Company, then filed a motion to strike out its name as it appeared by amendment in the petition and summons and also a motion to quash the sheriff’s return showing service upon it. These motions were overruled.

I. Appellant claims that this is a case where suit was brought against one party, service had upon that party, and the plaintiff permitted to substitute another party against whom no cause of action was alleged in the original petition; that this amounts to the substitution of one cause of action for another.

Section 1274, Revised Statutes 1919, provides that the court at any time before final judgment in furtherance of justice may amend any record, pleading, process, entry, return or other proceedings by adding or striking out the name of any party or by correcting a mistake in the name of a party. In case of Green v. Supreme Lodge, 79 Mo. App. 179, it was held, quoting from an earlier case, that service upon a defendant by the wrong name did not invalidate the judgment. In State ex rel. Fabrico v. Trimble, 309 Mo. 415, decided at the present term, Court in Banc, in opinion written by Graves, J., held that where the petition summons and sheriff’s return mentioned a defendant, who was actually served, by a name not his real name, judgment against him by default was good.

In the principal case cited by appellant, Jordan v. Railroad, 105 Mo. App. l. c. 455, the Court of Appeals said:

“If the railway company was the corporation in truth and in fact sued and the summons was actually served upon its agent, in such event upon due proof of those facts, the action of the lower court might have been justified (in amending as to the name); but the court was not warranted in assuming the truth or existence of the averments of plaintiff’s motion to amend without proper proof and erred in sustaining it without hearing testimony.”

In this case the very facts which were wanting in the Jordan case were supplied.

In his motion to amend the plaintiff alleged that the company sued was the Missouri Pacific Railroad Company, that process was actually served upon the Missouri Pacific Railroad Company, copies of the writ and petition were delivered to the agent by the Railroad Company and by him delivered to attorneys for the Railroad Company, who appeared for defendant in the Circuit Court of Bollinger County.

The appellant in its plea to the jurisdiction alleges that the Missouri Pacific Railway Company, since 1917, had not owned or operated or maintained any station and had no agents in Bollinger and Madison counties, Missouri, or in the State of Missouri. This is an admission that no process was served or could have been served on the “Railway” Company. It is not disputed that service was actually had upon the agent of the “Railroad” Company, as the amended return stated.

Evidence taken upon this motion to amend does not appear in the abstract of the record, although it is stated by respondent that it is incorporated in the bill of exceptions. From the order of the court allowing the amendments we must assume that the evidence supported the allegations of the motion. ' The allegations of plaintiff’s motion are sufficient to permit evidence that the “Railway” Company had ceased tó be a going concern, and existed, if at all, in name only.

II. Appellant assigns error to the refusal of the trial court do sustain a demurrer to the evidence. Appellant’s position is this: if snow was on the steps and was the occasion of the plaintiff’s fall, such snow had not fallen there but was carried there by passengers getting on the train; the steps were cleaned from time to time during the day before the injury occurred; the defendant discharged its full duty in that respect and was not hound to keep up a continuous inspection of the steps.

Under the instructions the plaintiff was allowed to recover whether the snow and ice which was said to be on the steps had fallen there the day before or had been tracked on by the passengers.

'While the defendant was not under obligation to keep up continuous inspection of the steps, it was bound to exercise the care required of a carrier to provide for the safety of its passengers.

The law in respect to the matter is stated in 2 White on Personal Injuries on Railroads, sec. 681, p. 1035. After saying that it is impossible to lay down any general rule applicable to all circumstances respecting the care to be observed by a railroad company in the removal of ice or snow from its cars, the author adds: “But where the snow-and-ice on a platform has existed in a dangerous condition for a length of time sufficient to enable the carrier, by the exercise of due care, to remove it, if the. accumulation is in sufficient quantity to be productive of danger to the passengers, the carrier will be held liable in case of injury to a passenger from such a cause.”

It is the duty of the carrier, therefore, to inspect at intervals for the purpose of keeping his appliances in good repair. That applies to removing accumulations of snow and ice when they become dangerous and the danger is obvious or can be discovered by proper care. [4 R. C. L. p. 1204; 10 C. J. 920-921.]

So it is held that although snow may be tracked upon the steps of a car by passengers, the carrier may be liable for injury caused thereby if it is suffered to remain for an unreasonable length of time. [Sutton v. Railroad Co., 230 Pa. St. l. c. 527-528; Neslie & Wife v. Passenger Ry., 113 Pa. St. l. c. 304; I. C. R. R. Co. v. Keegan, 210 Ill. 150; Kingston v. Boston Elevated Ry. Co., 207 Mass. 457.]

In this case the evidence showed that at each station, especially where passengers alighted, the porter and the conductor went up and down the steps and were bound to know their condition if they used their senses.

It was a three-car train — baggage car, combination mail-car-and-smoker, and one passenger coach. The smoker was next to the passenger car and it was on this car that the plaintiff was riding. It was a vestibuled car. Three steps led down from the platform, the outer edge of the lower step being on the line with the side of the car. "When the train was in motion a trap door let down from above extended the platform out over these steps. It is claimed by appellant that snow could not fall on the steps on account of this cover. The conductor in charge of the train, however, testified on cross-examination that this trap door covered the steps only from above so as to protect them from perpendicular fall, but the steps themselves were not enclosed, and any blowing snow could accumulate on them notwithstanding the trap door. Heavy snow had fallen February 19th; it was said by some witnesses, six, inches in depth. It was freezing weather that day. It appears from the evidence that the car during the following night was in the open at Poplar Bluff. The car was attached to the train and started from Charleston at 10 o’clock on the morning of the 20th. The distance from Charleston to Marquand where the plaintiff fell was approximately sixty miles. Conductor Gr. W. McCammon, in charge of the train, and the porter testified that there was slush and snow on the steps at Charleston, and the steps were cleaned off at that point and cleaned again at Morley, sixteen miles further on the route, and again at Delta, thirteen miles further, and again at Allenville, two and one-half miles from Delta, but were not cleaned any more before the train arrived at Marquand, where the plaintiff was injured. There were eleven stations between Charleston and Marquand. Allenville, about half way between, was the last station at which the steps were cleaned. The train arrived at Allenville at 11:10 a. m. The hour at which it arrived at Marquand is not stated, but the train stopped there for noon dinner. The different stations, from Charleston to Marquand, inclusive, with the distances given, are as follows:

By this it will be seen that according to defendant’s evidence the steps were cleaned four times during the passage of 311 miles from Charleston to Allenville; they were not cleaned again during the passage from Allenville to Marquand, a distance of 29 miles, there being five stations between those points at which passengers boarded the train. The conductor and several other railroad employees testified that there was no snow of consequence upon the steps, but they were wet when the train arrived at Marquand. The evidence shows that the train was equipped with brooms and shovels for the purpose'of removing ice and snow from the steps. The steps were covered with a corrugated rubber matting.

The plaintiff introduced ten or eleven witnesses, most of whom were passengers boarding or alighting at some of the stations from Lutesville, where the plaintiff boarded the train, to Marquand; all of them testified to the presence of ice and snow upon the steps. According to them, ice and snow were, upon the steps at Lutesville. One witness said it was half an inch thick. Another witness at Lutesville said at the edge of the step the' ice-and-snow was half an inch thick and slanted upward towards the back of the step, where it was an inch and a half thick or more; that this was on the steps of both the smoking car and the passenger-car. Another witness testified that there appeared to be more ice on the steps than there was on the ground; that there was snow on the ground at Lutesville and ice on the steps. Several witnesses estimated the ice on the two lower steps as being half an inch thick; said it looked like frozen snow and ice, or frozen slush, and that the condition was the same at Marquand as it was at Lutes-ville.

After leaving Allenvill'e, the last place where defendant claims the steps were cleaned, passengers were received at Whitewater, Laflin, Lutesville, Grlen Allen and Bessville. At some of those stations were towns of several hundred inhabitants. The evidence was not clear that passengers boarded the train at all of those stations, but the train stopped at all of them. The conductor, the porter, and possibly the brakeman, got off the train — walked up .and down those steps — at each station. From this testimony the jury could very properly infer that this frozen slush must have been on the steps before the train started, because it was snow ing, and according to some witnesses, sleeting the day before; it was freezing weather. The jury had evidence from which they might believe that, if the steps were cleaned as testified to by the train employees, they were not properly cleaned; and the frozen slnsh was not cleaned off.

In support of its position appellant cites Vancleve v. Railroad, 107 Mo. App. 96, where a judgment for the plaintiff was reversed and remanded, and the court held at page 103, “that if the slippery substance [in that case mud] was deposited on the steps while the train was en route by agencies other than those of the company, it was not negligence to fail to remove such substance, because the company was not bound to keep up a continuous inspection.” The opinion in that case cites several cases where a slippery condition of the steps was caused by other things than snow and ice. In that case the court says, at page 100: “There-is no evidence showing or tending to show that any of appellant’s servants in charge of the train knew or had notice that the steps were muddy and slippery. ’ ’

It may be noted here that mud, banana peelings, and things of that kind, are hardly in the same class with snow and ice. Such things get upon the step and the ordinary observation of employees would not notice them, but where snow is continually tracked upon the steps by incoming passengers so as to create the condition described by plaintiff’s witnesses, and where the employees themselves were continually using those steps, a knowledge of the condition was much more likely to be brought to them.

The case of Williams v. K. C. Terminal Railway, 231 S. W. 954, is cited. That was where a passenger slipped on a stairway at' the station and was injured. This court, in holding the defendant not liable said this, at page 956: “There was no direct evidence as to what caused the step to be wet, or as to whether defendants had any knowledge of such condition prior to plaintiff’s fall.”

The case of Craig v. United Railways Company, 175 Mo. App. 616, is cited. That was a case where the plaintiff slipped on mud accnmnlated on the steps of a street car. The court called attention (l. c. 624) to the statement of the conductor that he had removed the slush and ice before the car left its starting point; that the slush which caused the slippery condition was brought on the shoes of the passengers, and said, at page 625: “If it conclusively appeared . . . that the slippery substance on the step of the car was deposited there by the passengers passing out, as suggested in the argument, that, those in charge of the car were not aware of it and that none of it was present before the car started from Wellston, it may be that no liability should be declared against the defendant for its omission to stop the car and remove.it en route.” Applying that conclusion to the facts in this case, if the accumulations which caused the slippery condition were carried on by the feet of the passengers, and it conclusively appeared that those in charge of the train were not aware of it, then there might be no liability for failure to clean the steps when the train did stop at the different stations.

Further, on' the same page, the Court of Appeals said: “The obligation of high care is to be considered in connection with the circumstances of the case, and, as prudent persons, those in charge of the car are deemed in law as anticipating serious results from such freezing weather when such deposit is known to be on the steps.”

Bates v. Harvey, 195 S. W. 571, opinion by the Kansas City Court of Appeals, is cited. The court in that ease said, at page 572: “As prudent persons, those in charge of the car were required to anticipate people falling just as plaintiff fell, when there is freezing weather, and when deposits of snow and ice are known to be, or are likely to be, upon the steps.”

Here we have positive evidence that at Lutesville, Marquand, and other stations, after the train left Allen-ville, ice, snow and frozen slush were upon the steps in such quantity as to make it dangerous; that the frozen slush, or ice sloped from the inside of the step to the outside. The appellant’s employees knew the ice and snow were accumlated on the steps, on their own testimony, if none was on there when the train started, for they cleaned the steps four times in the space of about thirty-one miles. They did keep up an inspection sufficient to know when snow and ice accumulated on the steps. If snow and ice were on the steps after the train left Allenville and remained on there until Marquand was reached, as testified to by a number of witnesses, in such quantities as the evidence tends to show, the defendant’s employees were bound to know it was there. If they did not actually know it they failed to use even ordinary care. If between Allenville and Marquand they had exercised the same care which they admitted they felt obliged to exercise between Charleston and Allenville, they would have known the dangerous condition of the step at the later stations. So we think a case was made out which authorized the jury to find for the plaintiff, if they believed the condition was such as described by the plaintiff’s witnesses; whether they believed the condition was caused by the falling snow of the day before or by the accumulations of snow upon the steps carried by the feet of the passengers in boarding the train.

III. The defendant offered instructions numbered 8 and 9 upon the point just discussed, which it is claimed were erroneously refused. Instruction 8 told the jury that if they found the steps were in reasonably safe condition to enable the plaintiff to board the train at the time he did so at Lutesville, then the defendant could not be held liable for the condition of the steps during the passage from Lutesville to Marquand.

This instruction leaves out of consideration the positive evidence that the train stopped at different stations between Lutesville and Marquand, and the condition of the steps, testified to by the witness at Marquand; it leaves out of consideration that the steps at Lutesville might have received accumulations of snow from passengers boarding the train there after the plaintiff got on. It might have been perfectly safe for him to board the car at Lutesvillé, and entirely unsafe for him to alight at Marquand, and possibly safer in boarding the car than in alighting. The conductor could not say how many got on at Lutes-ville, it being the nearest station to Marble Hill, the 'county seat, where people boarded the train going to and from Marble Hill. The conductor also could not tell how many got on at Grlenn Allen or Bessville. The instruction also leaves out of account the requirement of any kind of care on the part of' employees after the train left Lutesville.

Instruction 9 tells the jury that it was not the duty of the employees of the defendant to clean or remove ice from the steps which might accumulate during the passage from .Lutesville to Marquand, and if the jury found that it did so accumulate during that time and in consequence of the passengers getting on or off the car and the plaintiff slipped and fell on account of it, the plaintiff could not recover. That instruction leaves out of account any knowledge which the employees might have of a dangerous condition. It might have been ever so dangerous and the employees might have known all about it, and still the plaintiff could not recover in such case. Both instructions were properly refused.

IV. Appellant presents objections to Instruction A, the principal instruction given for the plaintiff. First, that it required of defendant the highest degree of care due a passenger while the plaintiff was descending from the stationary car. This objection is on the theory that while the car was standing still the carrier owed the passenger alighting therefrom' no more than ordinary care. Several cases are cited where passengers in departing from stations were injured by dangerous condition of the steps or way, and it was held that the carrier owed the passenger in such case only ordinary care to keep such way or space in reasonably safe condition. The rule is that the relation of carrier and passenger, requiring the highest degree of care, continues until the passenger has alighted from the vehicle, and it obtains with respect to the steps provided for the passengers’ exit from the vehicle. [Craig v. Railway, 175 Mo. App. l. c. 623.] No case is cited where a distinction is made between a stationary car and one in motion. A passenger is not'required to alight until the train stops and the high care continues after it is stopped until he has alighted in safety.

Another objection urged against Instruction A is that it .broadens the issues. It is claimed that the petition is predicated upon the exercise of ordinary care upon the part of the defendant, and Instruction A requires the highest degree of care, and thereby broadens the issues. Cases are cited where this court has held that, although the evidence shows a ground of recovery not pleaded, an instruction authorizing recovery, on such ground is erroneous because the instruction must limit the scope of recovery to the allegations of the petition. Such cases are not in point. This objection arises from the allegation in the petition that the employees of the company of the defendant, by the exercise of ordinary care, could have discovered the dangerous condition of the steps in time to have removed the same. From this the appellant concludes the defendant, by the petition, could be held to only ordinary care. There is no allegation in the petition of failure to use ordinary care and a prayer for recovery for that reason. The petition states the facts, that the defendant was a carrier that plaintiff became a passenger and that the defendant negligently and carelessly failed to keep ice and snow from the steps, thereby causing plaintiff’s injury. This is a statement of a failure on the part of the defendant to do what the highest degree of care required it to do. There was no motion to make more specific the allegation that the defendant negligently failed to keep the ice and snow off the steps, and we may assume that “negligently” in that case means a failure to perform the duty which the law imposes upon a carrier.

The facts pleaded in the petition showed a duty on the part of the defendant as a carrier to exercise the highest degree of care to prevent injury to the plaintiff, and the failure of the defendant to perform that duty. That stated the case against the defendant and authorized an instruction by which the jury might render a verdict for the plaintiff on such failure. The fact that the petition further alleged that the injury could have been averted by ordinary care does not modify the basis of the cause of action as a failure to exercise the highest care.

V. Defendant asked Instruction 5, to the effect that if by reason of the accumulation of snow and ice the steps of the car were so dangerous for use that an ordinarily prudent person under like circumstances would not have attempted pass over them, and the plaintiff knew, or by the exercise of ordinary care could have known, of their dangerous condition, and then attempted to pass over them he was guilty of contributory negligence and could not recover. The court refused the instruction and the appellant assigns error to the ruling. The appellant fails to point out any evidence which shows that the steps were so glaringly and obviously dangerous that a person of ordinary prudence would not have attempted to pass over them, or that the plaintiff knew or by the exercise of ordinary care could have known that they were so dangerous. There is no evidence upon which to base that instruction. Instruction 10, asked by defendant, told the jury that if the plaintiff was negligent and his negligence directly contributed to his injury he could not recover. An instruction for plaintiff, authorizing recovery, required a finding that the plaintiff was exercising ordinary care and caution. We think these instructions are sufficient to cover any want of care on the part of the plaintiff which might be inferred from the evidence.

Authorities cited by appellant do not support its position on this point.

VI. Appellant claims that the verdict of $50,000 was so excessive as to show passion and prejudice, and demands a reversal of the case on that ground alone. In the absence of any independent showing of passion and prejudice this court has always refused to reverse a judgment on account of an excessive verdict, but has met the situation by requiring a remittitur.

The former verdict of $50,000 was set aside by the trial court as excessive, and a second verdict is now presented for the same amount. The plaintiff sued for $200,-000. Ordinarily no sum of money will compensate an active, energetic, independent man for the injury which incapacitates him from pursuing his vocation in life, and from enjoying the ordinary activities of a healthy man. It being impossible to fix a fitting compensation in that respect, this court has consistently limited the amount of recovery in such cases to a reasonable sum which will compensate a plaintiff for pecuniary loss and in some degree for the suffering, endured. Each case stands more or less upon the facts developed in it.

After the plaintiff, was injured he, with some assistance, got into the station; he'was treated at his home for some time and by his physician sent to St. Louis in April following the injury, where he was put in plaster-of-paris easts and kept until June 27th, of that year. After that he was at home. He testified that he had incurred expense of about three thousand dollars for medical attention, nurses, hospital fees, etc. He was five feet eight inches in height; before his injury he weighed 214 pounds; he measured 42 inches around the waist. At the time of the trial he weighed 154. He complained that he was unable to sleep. By several tests of physicians who examined him the evidence showed that he had no feeling-in his lower limbs; experiments were made by thrusting needles into his legs, sufficient to draw blood, and there was no response showing that he felt the needles. At the same time he could move his right leg, and he could move his left leg to some extent. The physicians testified that his limbs were not atrophied. He was compelled to lie on a cot most of the time. The evidence was not clear as to whether he could walk with crutches. The injury was to his spine where his back struck upon the step when he fell. The injury is described by the physician as compression in the fifth lumbar vertebra. The expert witnesses explained at length the nerves of the vertebrae in that region and the effect of compression at that point. Some physicians testified that the plaintiff would never be better. The plaintiff himself testified that he suffered more or less pain, and that he could not walk or transact any business. His general health, aside from the local effects of the injury, seemed good. It was difficult for him to eat solid food and he lived mostly on milk, and tea and ice cream.

Plaintiff’s counsel calls attention to the earning capacity of the plaintiff as an important element entering into the amount to which he is entitled. He said his earnings from his activities immediately preceding the injury, excluding income from investments, was $8500 a year. He was asked if he made an income tax return and was unable to say that he had for the year preceding his injury. He testified that he owned two or three saw mills at a time and had men operating them; that that was his principal business, that and trading. He bought and sold cattle and hogs and ties; he shipped five carloads of cattle and 126 cars of ties during the year 1920. The average number of ties per car was 405, 'and his profit was from 15 to 20 cents per tie. It may be noted that in stating how much he earned he said it was aside from his income from his investments. We interpret his investments to mean money he had invested in such manner as to produce a regular income. He must have used considerable capital in buying and shipping cattle, and in buying and selling ties so that his personal efforts were not the only factor employed in earning $8500 a year, but it was the manner in which he handled his capital. The years immediately preceding his injury may have been unusually profitable in the trading in which he was engaged. At other times he may have lost money. He does not state any facts which would warrant a conclusion that his earning capacity was $8500 a year under usual circumstances.

There are some cases where injuries similar to this have occurred. For instance, Gordon v. Railroad, 222 Mo. 516, where a verdict was held to be excessive and a remittitur required so as to leave the judgment for $25,000.

In the case of Varley v. Columbia Taxicab Co., 240 S. W. 218, many cases are collated in which this court has reduced the verdicts by requiring remittiturs.

It may be noted in this case that the plaintiff suffered no mental impairment. With his mind as active as ever, there is no reason to believe that he cannot look after his investments and in a limited way employ his money to advantage. Of course, he was in the business of running saw mills, and shipping cattle and ties, which required more or less activity and moving around.

We believe, according to the principle usually acted upon by this court in such cases, that the verdict was excessive in the sum of $25,000. If, therefore, the plaintiff will within ten days remit $25,000 from his judgment, allowing the judgment to stand in the sum of $25,000, it will be affirmed; otherwise it will be reversed and remanded.

Walker, P. J., concurs; Blair, J., concurs, but thinks remittitur should be $30,000.