Novak v. Omaha & Lincoln Railway & Light Co.

170 N.W. 831, 103 Neb. 176, 1919 Neb. LEXIS 19

Opinions

Aldrich, J.

The jury iu this case have found upon conflicting testimony, and being the triers of fact, that they not only had the right to do this, but it was their duty to determine what was the truth after all testimony had been submitted, and on their conscience and.judgment, and the instructions of the court, determine as to which party should prevail; “and this finding of fact, unless clearly wrong,” will not be disturbed, because the jury in the realm of fact is absolute so long as it finds consistently with truth and justice: and their finding in this case, as to whose carelessness and negligence is responsible for the injury complained of, in our judgment, is correct.

It is admitted that the car was going' east, and Ihe plaintiff and his team were going west, and the team, upon seeing the car, became frightened and unmanageable. This occurred when the car was at least one block or more (that being 300 feet or more) away from the team. Then it devolved upon the motorman to stop his car, or to bring its speed under absolute control so that said car could be brought to a standstill within 25 or 30 feet; but, instead of doing this as a prudent and cautious man would naturally do, he proceeded to let the car run, and never at any time during the whole trouble did he stop it at all, but only slightly slackened its speed. The motorman teen having seen the car when a block away, and being on a level track could absolutely have stopped the car and prevented this accident but instead he chose to keep on moving- and at considerable speed and by so doing ran down and injured the plaintiff herein. This situation, the record discloses, is obvious, and not in any way contradicted. The motorman, and a companion, a disinterested witness, and all parties, so far as that is concerned, admit the car was not stopped at all, and it is agreed that it could have been stopped to a dead standstill, and have avoided the accident. The motorman, it appears, is responsible for this accident, and the injury resulting therefrom. The only question for us to determine is: To what extent were these injuries inflicted, and is the judgment reasonable and just? This question presents some difficulty.

The question we are deciding herein, after finding appellant liable, is: Was the verdict excessive, and does the evidence sustain the amount of recovery found by the jury? To this proposition we answer: There is no sufficient and competent evidence to sustain a verdict of $4,000. The evidence does not clearly show any permanent injury. The attending physician says a callous had formed on the hip joint, but an X-ray examination disclosed no such callous, nor any permanent 'injury. The man making this X-ray examination qualified as an expert, says that, had such injury been permanent, it would be ascertained, and that the examination disclosed no permanent injury. On this statement, and other evidence, it seems clear that the verdict is excessive. After the examination of the record and the testimony, we conclude the verdict excessive, and find that the amount entitled to be recovered by the plaintiff herein is $1,500. Unless the plaintiff files his remittitur in the sum of $2,500 within 20 days, then the judgment is reversed and the cause remanded for a new trial.

Affirmed on condition.