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NOVEMBER 05, 1986




Curtis Bradley filed suit in the Circuit Court of Bolivar County, Mississippi, against Emmitt Findley, d/b/a Findley Farms & Company, seeking damages for personal injuries. The jury returned a verdict in favor of Bradley in the amount of two hundred fifty thousand dollars ($250,000), the full amount demanded in the complaint. The lower court sustained a motion for new trial and granted a second trial on all issues. That trial resulted in a verdict in favor of Bradley in the sum of one hundred fifty thousand dollars ($150,000).

The sole question on this appeal is whether or not the lower court abused its discretion in granting the second trial and whether or not the original verdict in the first trial of $250,000 should be reinstated.

 There is little dispute in the facts of the case. Appellant was forty-nine (49) years old at the time of the accident, with a sixth grade education, and had been employed by appellee for approximately ten (10) years. His duties consisted of driving, hauling, loading and unloading soybeans in appellee's farming operations. On October 18, 1982, the appellant drove a truck upon the scales at the Findley operation, walked to the rear of the truck, opened the tailgate, and the beans began to fall into the grain pit. A cloud of dust rose from the beans, and appellant stepped back into an uncovered manhole injuring the coccyx (tailbone) at the posterior tip of his spine.

 The manhole into which appellant fell had been drilled through the concrete slab at the unloading pit to facilitate periodic maintenance of the scales. Charlie Hawkins, who drilled the hole, told appellee several times that a permanent cover was needed for it. Appellee Findley himself had fallen into the hole on one occasion prior to appellant's accident, but the hole had never been satisfactorily covered. Appellant knew the manhole was located at the grain pit, and knew that it was uncovered, but on the occasion of the accident, he stepped back when the grain dust rose without thinking about the hole, and fell into it.

 At the conclusion of appellant's case, the parties stipulated that appellant had incurred fourteen hundred eight dollars ($1,408.00) in medical expenses; that over the two-year period prior to 1982, he averaged six thousand eight hundred seventy-three dollars ninety-two cents ($6,873.92) in income; that his life expectancy was 23.5 years with a present

 value of lost earning capacity in the amount of seventy-four thousand four hundred eighty-seven dollars ($74,487.00).

 Appellant testified that when he sits directly on the tailbone, the pain is unbearable; that he can no longer drive a tractor or farm machinery, unless he is standing; that he has not consented to surgery but remains on medication prescribed by three physicians.

 Medical testimony indicated that appellant fractured, with some dislocation, the posterior tip of his spine, the coccyx; that the tip of the bone was displaced and loose in the pelvic cavity, and when it is bounced or jarred, it may become extremely painful; that injections into the spine may offer some temporary relief and, as an alternative, the coccyx could be surgically removed; that any kind of sitting profession would be uncomfortable; that appellant had sustained a five percent (5%) physical disability, but, that, on account of his intellectual level, his mental limitations, and loss of his fine motor coordination, that appellant could not be expected to get a regular job, and would not be able to sustain gainful employment in the future.

 In its order granting a new trial, the lower court said:

 The verdict of the jury was grossly excessive to the extent that it evinced passion, bias and prejudice on the part of the jury so as to shock the conscience of the Court. . . .

 The plaintiff, Curtis Bradley, was guilty of contributory negligence and the verdict of the jury indicated that it failed to respond to the instruction of the court that the jury should reduce the damages to the extent that the plaintiff's negligence contributed to the entire negligence apparent in the case.

 On a motion to reconsider his granting of the new trial made prior to the second trial, the Court further explained its ruling:

 I would have preferred, frankly, to have set it up where I could have granted a remittitur and let you decide whether to take that or not, but I couldn't get beyond the fact that, to me, you had to have a consideration of the ...

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