Hill v. Alabama & Vicksburg Railway Co.

79 Miss. 587

Opinion

Boothe, Special J.,

Footnotes

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delivered the opinion of the court.

This action was instituted for the recovery of damages impersonal injuries sustained by the appellant on appellee’s train, used for both passengers and freight, after appellant embarked thereon at Jackson for Vicksburg. The testimony shows that the injury was inflicted at Jackson or Bovina, the preponderance of evidence being that it was done during some switching in the yard at Jackson. There was interposed the plea ,of the general issue and contributory negligence, and at the trial there was a verdict and judgment for appellant for $100, from which judgment he appealed. There are several assignments of error, but the one relied on by appellant is that the damages assessed by the jury are inadequate.

The power and duty of the court, in a proper case, to set aside a judgment and grant a new trial, where the jury have failed to award adequate damages, is well settled by authority and is correct in principle; but the rule laid down in such a case differs but little, if any, from that established for vacating judgments rendered upon the award of excessive damages. In actions sounding in damages, where the law furnished no legal rule of measurement, save the discretion of the jury upon the evidence before them, courts will not disturb the verdict upon the ground of excessive damages, unless it be so flagrantly improper as to evince passion, prejudice, partiality, or corruption in the jury. Upon a mere matter of damages, where different minds might and probably would arrive at different results, and nothing inconsistent with an honest exercise of judgment appears, the verdict should be left as the jury found it. Railroad Co. v. Hurst, 36 Miss., 660; 74 Am. Dec., 785; Railroad Co. v. Whitfield, 44 Miss., 466; 7 Am. Rep., 699; Railroad Co. v. Caruth, 51 Miss., 77. The case of Moseley v. Jamison, 68 Miss., 336 (8 So. Rep., 744), was an action for the recovery of damages for personal injuries sustained by Moseley by reason of his having been dangerously wounded by pistol shots fired without justification by Jamison. There was a verdict in favor of plaintiff for $5. The motion for a new trial was overruled, and judgment was entered in his favor, taxing him with the costs. From this judgment he appealed. It appeared that the plaintiff had not only made out his right to recover, but that the evidence showed further and undisputedly that considerable sums were expended by him for medical attention and supplies, and that for months he was wholly disabled for business, and the sum lost by this disablement was not attempted to be disputed. The jury said he was entitled to recover, but by their verdict he got nothing; the cost taxed against him being much more than the pittance awarded. The court very properly reversed and1 remanded the case, because the verdict was “utterly inconsistent, unreasonable, and unjust.” In doing so, it was said by the court that “it may be conceded that where there is no standard for measuring damages, and no certain rule can be prescribed for the guidance of the jury, the court should not ordinarily grant a new trial, although the damages awarded by the jury may appear manifestly too small. In such cases of incertitude in the measure of damages, the matter must be left to the discretion of the jury; nor should its verdict be disturbed on its finding as to the proper amount to be awarded^ except in the cases when it has been plainly produced by prejudice, or passion, or other improper motive.”

The testimony in the case at the bar was conflicting, nor only aá to extent of the injury in the first instance, but as to whether the subsequent ailments of the appellant were the direct result of the injury, or that the injury contributed thereto. The jury had the question of fact before them, and were the sole judges of the truth or falsity of the testimony adduced, and they evidently did not believe that appellant was injured as materially as testified to by him, and that his subsequent mental and physical troubles, if really existing,'are all traceable to the injury inflicted long before. It does not appear that the verdict was produced by prejudice or passion, or other improper motives. It is unnecessary, in this view of the case, to pass upon the other questions raised by the learned counsel for appellant.

Affirmed.

Judge Calhoon having been of counsel before his appointment to the bench, did not take part in the case; he recused himself, and J. B. Boothe, Esq., was appointed by the governor as special judge in his place.