Plaintiff, a railway mail clerk, was injured by a collision between two of defendant’s trains. He sued for damages in the sum of $12,000, and recovered judgment for $11,800. From this judgment defendant has appealed, and thus his troubles reach this court. Whilst the answer is a general denial, yet the defendant made no contention nisi as to non-liability, but directed the force of its efforts toward the measure of damages. The case here is therefore (1) that the verdict is excessive, and (2) that the verdict is so excessive as to bespeak passion and prejudice upon the part of the jury, when certain alleged misconduct of the jury is considered.
*712These contentions require somewhat in detail the facts as to the injury, as well as other pertinent facts bearing upon the question of damages..
Plaintiff was about twenty-five years of age and earning nine hundred dollars per year. In the collision he was thrown against the mail sack rack in the car, and his right arm was caught in the sliding door of the car, resulting in fractures of the bones near the elbow joint. There were bruises upon his head and ear which healed. He was rendered unconscious for some several hours. He was treated for some days by the physician of the defendant, Dr. Ayers, and upon his return to his home at Paola, Kansas, had his arm manipulated by an osteopath to obviate, if possible, absolute stiffness of the limb. In about eight months after the accident he resumed work for the Government, at the same wages, but not on the road. He was given work at the depot at Kansas City, and his new duties were to check, both in and out, the mail sacks. In so doing he had to do more or less writing; which he did. He worked at this for eight hours per day. In two fingers on the right hand he seems to have lost. sensation. The medical testimony shows that the motion in the elbow is limited by reason of bony growth occasioned by the process of healing. These growths or knobs prevented the full use of the joint. Owing to the injury to one of the large muscles there was impaired motion in the shoulder joint. There was evidence of some soreness in the region of the fourth or fifth ribs. The strongest testimony on this injury to the arm is that of Dr. Foster, and is:
"I examined him the 6th of February, 1906, and I found that the arm was very much — greatly limited in its motion. He could not bend it to any degree, and he could not straighten it out entirely. I found there was some deformity on the outer side of the elbow, which undoubtedly prevented the true movement of the -arm. There must have been a bone misplaced, *713of course, that is a long time.after the fracture became confirmed, and we attempted to bend it up, there was a sudden stop I saw, not as of any muscular or tendinous resistance, but it was an abrupt resistance, a stoppage of the bending. I found that there were scars on his elbow where an injury had been inflicted, I found also that the shoulder joint was very much limited in motion, could not. raise it up, and I could not raise it any higher than this, could not get it up above his head, like that. Then there was a deep indentation of the large muscle of the chest that runs over and supplies that arm, helps in drawing the arm over in this way (indicating), and also in raising your body up; that muscle had been severed to a very great extent, if not altogether, right near its insertion into the arm: I found that there was imperfect motion of the fingers; he did not have very much of a grip; he could not clasp anything strongly, and all the motions and uses of that arm are very badly interfered with.”
Plaintiff himself complains of being nervous. He says that when he sees something about to happen he becomes nervous. He illustrated by saying that if he sees a truck handle about to fall to the floor it makes him nervous. The several doctors, however, say nothing about this symptom, and express no opinion thereon. Their testimony is confined to the condition of the arm, and this they say will not improve in the future. Plaintiff can clasp this hand in the process of handshaking, but he and one physician say that he hasn’t much “grip.” He says that he can .only raise four or five pounds with this arm, and that much writing tires him.
He lost no time, as the Government 'paid him during the entire time. He made no proof of any money expended for medicines or medical treatment. In fact he had no treatment for which he was liable except that of the osteopath, and there is no-proof of the value of his services. There is proof that plain*714tiff suffered considerable pain during Ms treatment and suffered some at times up to the date of trial, some fifteen months after the accident.
Defendant introduced no evidence. The court gave a peremptory instruction to find for the plaintiff, together with other instructions not necessary to mention at this point. Defendant contends, as above indicated (1) that the verdict is grossly excessive, and (2) that it is so grossly excessive as to indicate passion and prejudice upon the part of the jury and that a remittitur should not be permitted, but the cause reversed and remanded for another trial. Of these in their order.
I. We agree with defendant that this verdict is much in excess of what-the facts justify. It is true that the motion of this arm is much impaired. It is true that from the evidence he is not likely to have more motion therein, yet he has a very considerable use of the limb, and as distance lends enchantment to the scene, so time and use may add strength to this wounded member. He has lost no time. He has paid out nothing for medicine or medical attendance so far as the record speaks. He is earning the same now as before. His nervousness does not assume a very serious aspect. He himself only complains of this at times when something happens or he sees that it is about to happen. The verdict is very much beyond approved verdicts in this court. [Adams v. Railroad, 100 Mo. 555; Burdict v. Railroad, 123 Mo. 221; Nicholds v. Plate Glass Company, 126 Mo. 55; Stolze v. Transit Company, 188 Mo. 581; Henderson v. Kansas City, 177 Mo. 477, and authorities cited; Smith v. Fordyce, 190 Mo. 1; Devoy v. Transit Company, 192 Mo. 197, and cases cited; Phippin v. Railroad, 196 Mo. 321; Chitty v. Railroad, 166 Mo. 435, and cases cited; Dent v. Traction Company, 129 S. W. 1045; Dougherty v. Railroad, 97 Mo. 647; Gordon v. Railroad, 222 Mo. 516; Markey v. Railroad, 185 Mo. 348, l. c. 366.]
*715II. It is nest urged that if we find the verdict grossly excessive we should not order a remittitur, but reverse'the case for new trial. This we do not understand to be the rule as announced by this court in the recent case of Cook v. Globe Printing Company, 227 Mo. 471. At page 354 of the opinion of the majority in the Cook Case the rule is thus announced: “The rationale of these late cases is that the fact that a verdict is. too large does not itself indicate that the jury were actuated by passion or prejudice, where there was no error in the admission or rejection of testimony or in the instructions of the court, and no misconduct on the part of the jury was shown, and the evidence established that the plaintiff was entitled to a substantial verdict, and that in such case, if the plaintiff would consent to a remittititr of a part of his verdict, the defendant could not complain.”
The writer did not then, and does not now, subscribe to this rule, but it is the announcement of the Court in Banc, and it is not for a division of- this court to do otherwise than bow in submission to the majority rule announced by the whole court. This I do, and in so doing must hold that there is not in this record sufficient misconduct upon the part of the jury as would forbid their verdict to stand in some adequate sum. We have split verdicts in twain and permitted the remainder to stand. [Moore v. Transit Co., 226 Mo. 689, and cases cited therein.] We have cut off two-thirds of the verdict and yet permitted it to stand. [Cook v. Globe Printing Co., supra.]
So¿ in this case, whilst we think the verdict grossly excessive, yet if the plaintiff will within ten days remit $5800 therefrom as of the date of its rendition, we will permit it to stand for $6000 as of the date of its rendition. Should such remittitur be entered the judgment as above .indicated will be affirmed, otherwise it- will be reversed and remanded.
All concur, except Valliant, J., absent.