English Court of Exchequer illustrates the jury's command of the damages, where no rule of law is violated. The plaintiff, who claimed special damage from a carrier for non-delivery of goods, had sold them for as much as he could have obtained if there had been no delay, and the defendant paid into court 10, which the court considered ample to cover the expense of a journey he had taken to look after the goods, and all his actual damages. The jury having found a verdict for £5 more than had been paid in, a motion was made to set it aside as perverse. (The damages being under £20, the motion could not, under the English practice, be entertained on the ground that they were excessive.) The court, although considering the amount decreed clearly too large, reluctantly refused to disturb the verdict, as the question whether the amount paid into court was a sufficient compensation for the plaintiff's pecuniary loss had been properly left to the jury, and the verdict was not contrary to any direction of the judge at Nisi Prius.(*) "I doubt much," says Mr. Justice Jackson, in delivering an opinion in the Court of the Irish Exchequer Chamber, "whether in any case sounding in damages, for an acknowledged breach of covenant, the judge ought to take it upon himself to direct a verdict for nominal damages," ()

(*) Adams v. The Midland R. Co., 31 L. J. (N. S.) Ex. 35. See, as to the boundary between the power of the court and that of the jury on this subject, Smith v. Symonds, 1 L. T. R. (N. S.) 299, where the construction of a document was left to the jury. In California, it is doubtful whether the courts of first instance have power to interfere when verdicts are excessive. Payne v. Pacific Mail Steamship Co., 1 Cal. 33. In New York, the Court of Appeals cannot review the question of excessive damages. Metcalf v. Baker, 57 N. Y. 662; Starbird v. Barrows, 62 N. Y. 615; Maher v. Central Park, N. & E. R. R.R. Co., 67 N. Y. 52. Unless the excess arises from error in the judge's charge. Mechanics' & T. Bk. v. Farmers' & M. Nat. Bk., 60 N. Y. 40; Starbird v. Barrows, 62 N. Y. 615.

() Strong v. Kean, 13 Ir. L. R. 93.

The same ground was taken in City of Ottawa v. Sweely, (*) another action for personal injuries, and the court said: "It must not be supposed, however, that verdicts in cases of torts are beyond control; but they should stand, unless they are grossly erroneous, or there is a palpable misconception of the testimony, or they are the result plainly of passion or prejudice." In cases where exemplary damages are allowable, verdicts are rarely set aside. The obvious reason for this custom is that it is not easy to decide that such a verdict is so large as to be against evidence. It is only in extraordinary cases that the court will act.() And so, in Walker v. Erie Railway Co., (c) an action to recover damages for personal injuries, a motion to set aside a verdict for $20,000 was denied, Daniels, J., saying: "The rule so carefully maintained and guarded in actions upon contracts, and for tortious injuries to property, is incapable of being applied where the injury is to the person; for those injuries. are without precise pecuniary measure. The law has, accordingly, in this class of cases, committed the determination of the amount of damages to be awarded to the experience and good sense of jurors. And where the verdict rendered by them may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment upon their part, the policy of the court is, and necessarily must be, not to interfere with their conclusion." So where in an action against a railroad company by a farmer for the death of his wife, who had been thrown out of his market wagon and killed

(^) 65 Ill. 434, 436.

(1) Chicago & Alton R.R. Co. v. Wilson, 63 Ill. 167; Singer Manf. Co. v. Holdfodt, 86 Ill. 455; Barnette v. Hicks, 6 Tex. 352; McGehee v. Shafer, 9 Tex. 20.

(c) 63 Barb. 260, 267.

through collision with the defendant's train, although the wagon had descended to the point of collision down a gradual slope for more than a quarter of a mile, in plain view of the railroad, upon which the train could have been seen coming at a great distance, and the court considered that there was not a doubt that the evil happened from either the plaintiff's misfortune or fault, for neither of which was the company liable; yet as the case had been given to the jury without any error in law, they felt themselves compelled to affirm a judgment on a verdict of $9,150 for the plaintiff.(^) The discretion of the court may also be governed, to a limited extent, by previous decisions in other cases.() This practice cannot, however, be considered as strict matter of law. The argument has been sometimes advanced, that when the legislature has fixed the limit to the amount of damages recoverable for causing the death of a human being, it is improper, in actions for personal injuries, to allow a greater sum to the person injured than could have been obtained by his representative, under the statute, in case of his death.(*) The reasoning is not viewed with favor by the courts. These statutes are enabling in their nature and not restrictive, and the intention of the legislatures was evidently to extend, not to lessen, the rights of recovery. Besides this, the damages in the statutory action go to the family of the person whose death the defendant has caused, as compensation for their pecuniary loss through his death; while, in the common-law action, it is the person injured who recovers for the damage done to

(*) Pennsylvania R.R. Co. v. Goodman, 62 Pa. 329.

() Louisville & N. R.R. Co. v. Fox, 11 Bush 495; Travis v. Barger, 24 Barb. 614.

() Illinois Cent. R.R. Co. v. Welch, 52 Ill. 183; Collins v. Albany & S. R.R. Co., 12 Barb. 492; Murray v. Hudson River R.R. Co., 47 Barb. 196.

himself. The two causes of action are thus fundamentally different, and one cannot furnish a measure of damages for the other.

In some courts which sit exclusively to decide points of law, the question of excessive damages is not considered, being left entirely to the trial court. It has been so determined in the New York Court of Appeals, (*) and in the Supreme Courts of New Hampshire,(") Oregon,() and South Carolina.() In Connecticut it was said that the Supreme Court would not review a verdict unless all the evidence were before them.(*)

§ 1321. What damages are excessive. The power of the court to set aside a verdict on account of excessive damages is closely connected with its right to interfere when the verdict is against evidence. The power to disturb the verdict, as being excessive, rests in the discretion of the court. () But this discretion does not supplant that of the jury. The court must decide whether there is enough evidence to support the verdict, and if in its opinion there is sufficient, then the discretion of the court ceases. Up to that point, the discretion of the jury is unrestrained. Hence it follows that verdicts are often sustained, although they do not meet with the full approval of the court. (") If the amount of damages given by the jury is between the highest and lowest estimate of the witnesses, the verdict will usually

(^) Gale v. New York C. & H. R. R.R. Co., 76 N. Y. 594.

() Merrill v. Perkins, 61 N. H. 262.

() Nelson v. Oregon Ry. & N. Co., 13 Ore. 141.

(d) Petrie v. Columbia & G. R.R. Co., 29 S. C. 303.

(*) Page v. Merwin, 54 Conn. 426.

() Duffield v. Tobin, 20 Ga. 428.

(*) Saunders v. London & N. W. Ry. Co., 2 L. T. R. (N. S.) 153; George v. Law, I Cal. 363; Letton v. Young, 2 Metc. (Ky.) 558; Potter v. Thompson, 22 Barb. (N. Y.) 87.

be permitted to stand.(*) The court will interpose its power only in extreme cases. () The verdict must be clearly excessive to be set aside,() so great as to appear at first blush to be outrageous,() so as to strike every one with its enormity and injustice, (*) so large that no twelve men could reasonably have given it.(') The commonest grounds on which a verdict is set aside as excessive are that it shows passion, prejudice, partiality, or corruption.(*)

(*) Lockwood v. Onion, 56 Ill. 506.

() Galesburg v. Higley, 61 Ill. 287; Chenowith v. Hicks, 5 Ind. 224; Wilcox v. Green, 23 Barb. 639; Scherpf v. Szadeczky, 4 E. D. Smith 110.

(*) The Commerce, 16 Wall. 33; Pleasants v. Heard, 15 Ark. 403; Weaver v. Page, 6 Cal. 681; Goins v. Western R.R. Co., 59 Ga. 426; Blanchard v. Morris, 15 Ill. 35; Butler v. Mehrling, 15 Ill. 488; Chicago & N. W. Ry. Co. v. Peacock, 48 Ill. 253; Pittsburg, C. & St. L. R.R. Co. v. Hennigh, 39 Ind. 509; Barth v. Merritt, 20 Mo. 567; Marshall v. Gunter, 6 Rich. L. 419; Murray v. Buell, 74 Wis. 14.

(d) Pittsburgh, C. & St. L. Ry. Co. v. Sponier, 85 Ind. 165; Ohio & M. Ry. Co. v. Judy, 120 Ind. 397; North v. Cates, 2 Bibb 591.

(*) Wunderlich v. Mayor of New York, 33 Fed. Rep. 854; Coleman v. Southwick, 9 Johns. 45.

(†) Praed v. Graham, 24 Q. B. Div. 53.

(*) McGowan v. La Plata M. & S. Co., 3 McCr. 393; Brown v. Evans, 8 Sawy. 488; Kelly v. McDonald, 39 Ark. 387; Stuart v. Hoffman, 68 Cal. 381; Haight v. Hoyt, 50 Conn. 583; McMurray v. Basnett, 18 Fla. 609; Spencer v. McMasters, 16 Ill. 405; Walker v. Martin, 52 Ill. 347; Decatur v. Fisher, 53 Ill. 407; Crose v. Rutledge, 81 Ill. 266; Hennies v. Vogel, 87 Ill. 242: Loewenthal v. Streng, 90 Ill. 74; Alexander v. Thomas, 25 Ind. 268; Pittsburgh, C. & St. L. Ry. Co. v. Sponier, 85 Ind. 165; Berry v. Central Ry. Co., 40 Ia. 564; Union P. Ry. Co. v. Hand, 7 Kas. 380; Missouri, K. & T. Ry. Co. v. Weaver, 16 Kas. 456; Atchison, T. & S. F. R.R. Co. v. Moore, 31 Kas. 197 (statutory); North v. Cates, 2 Bibb 591; Holburn v. Neal, 4 Dana 121; Louisville & N. R.R. Co. v. Mitchell, 87 Ky. 327; Field v. Plaisted, 75 Me. 476; Beaulieu v. Parsons, 2 Minn. 37; Shartle v. Minneapolis, 17 Minn. 308; Goetz v. Ambs, 27 Mo. 28; Graham v. Pacific R.R. Co., 66 Mo. 536; Quigley v. Central P. R.R. Co., 11 Nev. 350; Solen v. Virginia & T. R.R. Co., 13 Nev. 106 (statutory); Hovey v. Brown, 59 N. H. 114; Ogden v. Gibbons, 5 N. J. L. 518; Merritt v. Harper, 44 N. J. L. 73; M'Connell v. Hampton, 12 Johns. 236; Tinney v. New Jersey S. B. Co., 5 Lans. 507; Bierbauer v. New York C. & H. R. R.R. Co., 15 Hun 559; Oldfield v. New York & H.