Opinion
October 29, 1945.
The case was submitted on briefs.
A. Margolis, for the defendant.
W.A. Torphy, for the plaintiff.
Exceptions overruled. This action of tort was brought in the Superior Court by the plaintiff by her next friend to recover compensation for personal injuries. There was evidence that the plaintiff sustained such injuries when she was six years old. The jury returned a verdict in the amount of $5,000. The defendant filed a motion for a new trial on the ground that the "damages awarded are excessive" and to "prevent a miscarriage of justice." The judge, after hearing, denied the motion. He made no specific ruling of law and no such ruling was requested. The defendant excepted to the denial of this motion. Its sole contention relates to the amount of the damages awarded. The disposition of the motion was within the sound judicial discretion of the judge, and his exercise of discretion in denying the motion cannot be revised on exception unless there was an "abuse of discretion" amounting to error of law. Bartley v. Phillips, 317 Mass. 35, 43-44. Examination of the evidence upon the issue of damages — which need not be recited — does not disclose that the amount of the verdict, though large, was so clearly disproportionate to the injuries sustained that "no conscientious judge, acting intelligently, could honestly" have permitted the verdict to stand by denying the motion for a new trial. Davis v. Boston Elevated Railway, 235 Mass. 482, 502. Kinnear v. General Mills, Inc. 308 Mass. 344, 348-349. Consequently, it cannot rightly be said that there was "abuse of discretion" amounting to error of law.