Hasie v. Alabama & Vicksburg Railway Co.

79 Miss. 581

Opinion

Boothe, Special J.,

*

delivered the opinion of the court.

This cause was before the court at a former term on appeal from a judgment in favor of the appellee, and was reversed because of erroneous instruction given in its behalf. 78 Miss., 413; 28 So. Rep., 941. At a subsequent trial in the court below the jury awarded appellant for his personal injuries sustained the sum of $500. From this judgment he appeals, and assigns as the only ground of error that the damages awarded were inadequate. If the undisputed testimony offered by tbe appellant and heard by the jury disclosed that the damages assessed were inadequate, and that the jury had been influenced by prejudice, or passion, or other improper motives, it would be the plain duty of this court to award a new trial. Moseley v. Jamison, 68 Miss., 336 (8 So. Rep., 744) ; Hill v. Railway Co. (Ala.), 31 So. Rep., 198. Rut such is not the case. It appears from the examination of all the testimony that there was a material conflict in the testimony, not only as to the seriousness of the injury at the time it was inflicted, but also as to the direct or proximate cause of the subsequent mental and physical ailments testified to by the appellant and others in his behalf. The jury, under the evidence adduced, would have been warranted in finding a verdict for a larg’er or a smaller sum, or for the defendant railway company. And there is nothing in the record showing, or tending to show, that the finding of the jury was plainly produced by prejudice or passion or .other improper motive; but, on the contrary, it sufficiently appears that the jury has responded to the whole demand made upon it by the law and the evidence. After reaching these conclusions, it is needless to pass upon the other questions raised.

The judgment of the court below is

Affirmed.

Judge Calhoon having been of counsel in the case before his appointment to the bench, took no part in its decision; he recused himself and J. B. Boothe, Esq., was commissioned by the governor as special judge in his place.