Duffy v. Chicago & Northwestern Railway Co.

Lyon, J".

I. The learned counsel for the defendant has submitted to the court an argument, based upon the assumption that the bill of exceptions does not show whether the motion for a new trial was made upon the minutes of the court, or upon a ease, or for newly discovered evidence, in which he contends that the circuit court may have had before it the most ample and convincing proofs, outside of the testimony contained in the bill of exceptions, to sustain its ruling.

Admitting his premises to be correct, it would not be difficult to show from this record that the bill of exceptions does contain all of the testimony which was before the circuit court on the hearing of the motion for a new trial. But the premises are not correct. The record shows affirmatively that the attorney for the defendant “ moved the court on its minutes to set aside the verdict and grant a new trial.” The counsel was doubtless misled by the omission of the words “ on its minutes,” from the printed abstract of the case furnished by the opposite party.

II. It is further urged as a reason why the order granting a new trial should not be disturbed, that “ the granting of new trials is so much a matter of discretion that the court will not interfere except in a case of a gross abuse of that discretion.”

If it does not appear that the court has proceeded upon a mistaken view of the law in granting a new trial, the granting thereof is matter of discretion, and this court will not interfere unless there has been an abuse of such discretion. This rule was applied in Van Doran v. Armstrong, 28 Wis., 236 , and in the cases there cited.

The rule applicable to this case is believed to be correctly stated in Jones v. Evans, 28 id., 168. It is there said, in effect, *193 that when it is clear that tbe court below has proceeded upon a mistaken view of the law in granting a new trial, this court will interfere, (p. 170.) The same rule was applied, and an order granting a new trial reversed, in Bushnell v. Scott, 21 id., 457.

In the present case, the record shows clearly that the verdict was set aside and a new trial granted for the sole reason that the court thought the damages awarded were excessive. The order was not made in the exercise of the discretionary power of the court in that behalf, but is based entirely upon, and is the result of, the views of the court upon a proposition- of law. If those views are correct, the order must be affirmed,— if incorrect, it must be reversed.

III. We are brought, therefore, to the consideration of the principal question in the case, which may be stated thus: Are the damages assessed so disproportionate to the injuries which the jury were justified by the proofs in finding that the plaintiff received, that the court can properly hold, as matter of law, that the same were excessive ?

It is impossible to state any test by which it can be indisputably determined in all cases of this kind, whether the damages awarded are or are not excessive. To determine this question, many conditions are to be considered. The age and previous physical condition of the injured party, the amount of suffering, physical and mental, caused by the injury, the probability or certainty that its effects will be permanent or of long duration, the extent of disability, the time lost, or which probably will be lost, and the value thereof, and the expenses necessarily incurred by reason of the injury, are some of those conditions. Hence, within certain limits, this question must be determined in each case upon due consideration of all the facts proved therein, or which the testimony tends to prove.

But it may safely be laid down as a general rule in cases of this kind, that when the testimony warrants the jury in finding that the injury will produce serious and permanent disability *194 ' — that it will incapacitate the injured party for labor or the pursuit of his business during the remainder of his life,— the courts will very seldom disturb the award of damages. Karasich v. Hasbrouck, 28 Wis., 569 , is a case in which this rule was applied.

It should be observed that the plaintiff is only entitled to recover actual or compensatory damages. This is not a case in which exemplary or punitory damages can properly be given.

There are several cases in which this court has held, as matter of law, that the damages awarded by the jury were excessive. A brief reference to some of these cases may aid us in determining tbe question under consideration.

In Goodno v. Oshkosh, 28 Wis., 300 , the injury complained of was to the ankle joint. The plaintiff was a widow lady, and dependent upon her own labor for the support of herself and children. The testimony tended to show that she was totally disabled by the injury for nine months, during which time she endured much pain, and that at the time of the trial (which was nearly two years after she was injured), the injured joint was very weak and turned easily. Her surgeon testified that she would probably recover in two or three months so that the limb would be as useful as it ever was, but that it was out of line, and its symmetry would probably never be restored. A verdict for $5,000 damages was set aside as excessive, but a majority of the court intimated that one for $3,000 would not have been disturbed.

In Spicer v. The Chicago & N. W. Ry Co., 29 id., 580, the injury was to the ankle, which was very badly sprained. The plaintiff was unable to step upon the foot affected for four weeks. At the time of the trial (seven months after the injury), it was not entirely well, and caused some pain. The surgeon testified that it was a very bad sprain, which would require a long time to heal, but that his impression was that the plaintiff would, ultimately, entirely recover from the effects of the injury. A verdict for $2,500 damages was held excessive and *195 set aside, and $1,000 was named as tbe highest sum which could properly be-awarded to the plaintiff under the testimony.

In Patten v. The Chicago & N. W. Ry Co., 32 Wis., 524 , the plaintiff was a lady, seventy-two years of age, without family or dependants. She lived with her relatives and friends, and supported herself by her labor in the various families with whom she resided. The testimony showed that her right shoulder was severely injured, and tended to show that it was dislocated. She was disabled for several weeks, and suffered .much from the injury. At the trial, sis months after she was hurt, her right arm was practically useless. The surgeon who attended her immediately after she was injured, was not examined as a witness; but two others, who examined her about the time of the Dial, testified that the usefulness of her arm was considerably impaired. They both declined, however, to give any opinion as to the extent of her injuries, or how long their effects would probably'continue. The verdict was for $2,538. It was held excessive, and the intimation of the court was, that upon the testimony in the case a verdict for more than $1,200-would be excessive.

In the present case, the plaintiff, according to the testimony of Dr.. Cody, his physician, who had known him twenty-five years; was, before he was injured, an able-bodied, healthy man, and possessed of a strong constitution. He was sixty-two years of age, and is a farmer. He testified that before he was hurt he worked regularly on the farm, and was able to do, as he expressed it, “ a good day’s work — a man’s work.” The testimony tends to show that, in consequence of the injury complained of, the plaintiff was able to do but little work for a year or more; that he had not the power of his hip and leg for a year and a half ; and that his back was weak and troubled him from the time of the injury to the trial — a period of over four years. Dr. Cody, who attended him while he was suffering from such injury, testifies that in his opinion it will always *196 follow him; that lie will not be as sound; and that the diffi - culty in his back is a result of the same injury.

Upon this testimony the jury might well ñnd, and probably did find, that the plaintiff’s injuries were permanent, and would practically disable him for labor during the remainder of his life. Although sixty-two years of age when injured, he was healthy and vigorous, and could, but for the injuries, have reasonably expected to enjoy several years of good bodily health, with the capacity to perform considerable labor. The testimony tends to show that by reason of his injuries this reasonable expectation has been destroyed.

The probable permanent effect of the plaintiff’s injuries distinguishes this case from those above referred to; and, in view of the intimations as to the amount of damages in those cases respectively, which would not be considered excessive, we do not think that it can be successfully maintained that the award in this case is excessive. It seems to us that $3,000 in the Groodno case, or $1,000 in the Spicer case, or $1,200 in the Patten case, is fully as liberal an award as $1,600 in this case; and that if verdicts for the above sums can be sustained in those cases respectively, one for $1,600 ought to be sustained in this case.

Upon the whole, we think that the damages awarded by the jury are not excessive, and hence, that the order granting a new trial should be reversed.

By the Court — Order reversed.