Opinion
No. 30792.
January 22, 1934.
DAMAGES.
Two hundred dollars to seventeen year old girl for injuries to head, shoulders, and knees, broken nose, and causing permanent disability in knee, held inadequate.
APPEAL from the Circuit Court of Chickasaw County.
Paine Paine, of Aberdeen, and C.H. McCraine, Jr., of Houston, for appellant.
When a trial judge may and should invade the province of a jury and set aside its verdict and grant a new trial on the ground that the verdict as to liability of the defendant is contrary to the great preponderance or weight of the evidence, and when he may not do so, is clearly set forth in two lines of adjudicated cases from this court.
M. O.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; G.M. N.R. Co. v. Holcomb, 105 So. 787; C. G. Ry. v. Buford, 150 Miss. 832, 116 So. 817; M. O.R. Co. v. Johnson, 157 Miss. 266, 126 So. 827; M. O.R. Co. v. Johnson, 141 So. 581; Maley v. Herman, 146 So. 309.
Among the great number of cases in which this court has adjudicated that the trial judge should not set aside the verdict of the jury as against the great preponderance or weight of the evidence, are the following:
Davis v. Temple, 129 Miss. 6, 91 So. 689; Cox v. Tucker, 133 Miss. 378, 97 So. 721; Y. M.V.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; C. G. Ry. Co. v. Lee, 149 Miss. 543, 115 So. 782; Y. M.V.R. Co. v. Beasley, 158 Miss. 370, 130 So. 499; St. L. S.F. Ry. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; Greer v. Pierce, 147 So. 303.
The case at bar comes squarely within the principle of the line of cases that hold that the trial judge could not, and should not, invade the province of the jury and set the verdict aside because the evidence for the plaintiff and that for the defendant was in "sharp conflict."
It strikes us that if the action of the trial court in this case in setting aside the verdict in appellant's favor for three thousand five hundred dollars is to be approved, then it is useless for a litigant to assign for error at all the action of the court in setting aside a verdict of the jury and granting a new trial on the ground that the verdict is contrary to the overwhelming preponderance or weight of the evidence, but the statute will only become beneficial to a litigant whose motion for new trial on that ground has been refused.
In view of the serious and permanent nature of the injuries suffered by appellant on that occasion, three thousand five hundred dollars was a very moderate award.
C. G.R. Co. v. Buford, 150 Miss. 832, 116 So. 817.
Under the plain facts of this case, appellant was clearly entitled to the victory she won on the first trial of her case.
Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552.
The verdict of the jury on the last trial of the case was grossly inadequate and clearly evinces passion and prejudice on part of that jury against appellant.
C. G. Ry. Co. v. Lee, 149 Miss. 543, 115 So. 782; Y. M.V.R. Co. v. Beasley, 158 Miss. 370, 130 So. 499; Scott v. Y. M.V.R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; Murphy v. Cleveland, 106 Miss. 269, 63 So. 572, Ann. Cas. 1916B, 454; White v. McRee, 111 Miss. 502, 71 So. 804; Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143, 563; McLaughlin v. Fagin-Peel Co., 125 Miss. 116, 87 So. 471; Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257; Hicks v. Corso Cefalu, 131 Miss. 659, 95 So. 636; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Thompson v. Cloud, 150 Miss. 697, 116 So. 814.
B.N. Knox, of New Albany, for appellee.
When all the testimony has been heard and all the arguments delivered and the verdict returned, if, upon a completed view of the entire case, the trial judge is then of the opinion that the verdict is against the overwhelming weight, or clearly against the great preponderance, of the evidence, his duty is, upon a motion for a new trial, to set aside the verdict and grant a new trial.
Johnson v. M. O.R.R. Co., 141 So. 581; Newton v. Homochitto Lbr. Co., 138 So. 564; C. G. Ry. Co. v. Buford, 116 So. 817; M. O.R.R. Co. v. Bennett, 127 Miss. 413; Maley v. Herman, 146 So. 309; G.M. N.R.R. Co. v. Holcomb, 105 So. 787.
In the second trial, the jury heard the evidence, the argument of counsel, the many instructions from the court as to the law on the various angles of the case, and the instructions are admitted to be correct. The evidence was barely recognizable on the part of the plaintiff on the second trial, as compared to the first trial. The whole case was fairly submitted to them from every angle and the verdict now complained of was the result. There is not anything in the record to corroborate the statement that the jury evinced passion and prejudice against the plaintiff, and this court, as it has often held, will not be inclined to disturb that finding, unless it is clearly against the overwhelming weight of the evidence.
Miss Johnnie O. Barr, a minor seventeen years of age at the time of the injury, brought suit against the Gulf, Mobile Northern Railroad Company for personal injuries inflicted upon her by a collision between an automobile, in which she was riding, and a freight box car, which collision occurred about nine o'clock. The complainant was a guest in the car of one George Carter, in company with Carter, her uncle, and her young sister, and they were proceeding along a highway which crossed the Gulf, Mobile Northern Railroad Company's tracks, and in the collision the complainant was seriously and permanently injured, having her nose broken, her head and shoulders and knees injured, the injury to one knee resulting in permanently crippling the complainant.
The evidence was conflicting as to how the accident took place, and whether the railroad company gave proper signals in approaching said crossing.
There was an original verdict for the complainant in the sum of three thousand five hundred dollars. A motion for a new trial was filed and granted, and on the second trial, there was a verdict for only two hundred dollars.
The complainant made a motion to have the court set aside the verdict as to damages, but to let it stand as to liability, which motion the court overruled and entered judgment for two hundred dollars, from which the complainant appeals, and assigns as error that the court erred in not setting aside the verdict as to the amount and leaving it in force as to liability.
The defendant railroad company has not appealed from this judgment, nor cross-assigned errors.
After a careful consideration of the evidence, we think the verdict was totally inadequate to compensate the complainant for her injuries.
The judgment will, therefore, be affirmed as to liability, but reversed as to the amount of damages, and remanded for trial as to damages alone.
Affirmed in part, and reversed in part.