Opinion
April Term, 1898.
Alfred A. Gardner [ William J. Kelly with him on the brief], for the appellant.
Malcom R. Lawrence, for the respondent.
The action is for the recovery of damages resulting from negligence, and the only question presented by the appellant on the argument of this appeal related to the excessive amount awarded for damages. A motion for a new trial was made and the justice who presided at the trial denied the same, delivering the following opinion:
"I think the verdict for the plaintiff amply warranted by the evidence. The fact that the platform was made to slope to the Manhattan Beach tracks indicates conclusively that it was expected that passengers should cross the Manhattan Beach tracks at that point; but if it were not for the disinclination of courts to interfere with the assessment of damages by juries, I should grant a new trial on the ground that the damages awarded were excessive. The only permanent injury claimed is a slight hernia, and the evidence to connect that injury with the accident is so flimsy and unsubstantial that it is not credible that the jury should have found that this injury was the result of the accident. The failure of the plaintiff to call her physician, without explanation, amounts practically to a confession that he could not testify in her favor as to the permanent injury claimed. As stated above, if it were not that I consider the weight of precedent against it, I should certainly grant a new trial unless plaintiff stipulated to reduce the verdict to $500."
The final sentence may be open to the construction that the learned justice stated that the weight of precedent was against the right of the trial court to set aside or to reduce a verdict at the Trial Term, and it is only for this reason that we take occasion to say that the residence of such a power in the court at Trial Term is inherent and beyond question, and needs no citation of authority. We have had frequent occasion during the existence of the present Appellate Division of the Supreme Court to exercise the power of reducing verdicts which we considered excessive, but this power can never be used more satisfactorily than at the Trial Term, where the court has the opportunity, not only of seeing and hearing the parties and witnesses, but of judging of their behavior on the stand. ( Bannon v. McGrane, 13 J. S. 517.)
It is to be regretted that this power has not more frequently been resorted to in cases where it is so clear that such manifest injustice has been done that the Appellate Division has been constrained to review and reduce the amount of verdicts which have apparently been rendered under the influence of passion, prejudice, partiality, sympathy or misconception.
We have no hesitation in giving practical effect to the opinion of the learned justice at Trial Term and reducing the amount of the verdict to $500, without further consideration of the evidence.
CULLEN, J., absent.
Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days the plaintiff stipulates to reduce recovery of damage to $500, in which case the judgment as modified is unanimously affirmed, without costs.