Imágenes de páginas


and humillated by being put in Jall, where it So, a verdict in favor of a married woman for does not appear that he could have got other $1, in an action brought by her against a saloon equally profitable employment after he was dis- keeper for damages resulting from loss of sup. charged, or that be had not lost his employment port by the intoxication of her husband, for the when first arrested. Taylor v. Davis (Tex.) 13 sum of $1,000 for the benefit of her individual S. W. 642.

estate, cannot be sustained. Greenlee v. SchoenSo, a judgment for a nominal sum in an action beit, 23 Neb. 660, 37 N. W. 600. for malicious prosecution will not be reversed And in Page v. Carter, referred to in Apps v. because the jury did not allow the plaintiff Day, 14 C. B. 112, a rule was made absolute for the counsel fees paid by him in defending hin- a new trial in an action of crim. con. on the self against such prosecution, though the jury ground that the verdict was against the evidence would have been at liberty to allow such fees. I though the damages were under £20, because it The rule that in an action for malicious prose-involved a question of character. cution the jury may award the plaintiff the dam- See also Shoff v. Wells, 1 Neb. 168, infra, IV. ages directly sustained by him in the defense of t. the original suit or prosecution against him, including reasonable counsel fees, is not impera-e. Actions for personal injuries caused by negtive, and a verdict for the plaintir for $1 in

ligence. such a case will not be set aside as in disregard

1. General rules as to. of an instruction to assess such damages as the Jury believed he suffered, where the evidence The court has power to set aside verdict in showed that he had expended $101 as attorneys' an action for damages for personal Injury refees in securing his release, as the jury may sulting from negligence, upon the ground that have disregarded the evidence. Gregory v. it is grossly inadequate and disproportionate to Chambers, 78 Mo. 294.

the injury suffered. Henderson v. St. Paul & d. Actions for assault and battery and other D. R. Co. 52 Minn. 479, 55 N. W. 53.

But a verdict in an action for substantial torts.

damages for personal injuries caused by negliActions for assault and battery, etc., seem to gence will not be set aside for inadequacy unless be governed by the same rule as those for ma- it is such as to shock the conscience and clearly licious prosecution and false imprisonment, and show that the jury must have been influenced by the verdict was formerly deemed conclusive passion or prejudice, or that they proceeded without reference to its smallness.

upon some erroneous basis in arriving at their Thus, in Donelly v. Baker, Barnes' Notes, 154, conclusion. McGowan Interstate Consol. the court refused to set aside a verdict for £8 Street R. Co. 20 R. I. 264, 38 Atl. 497. on the ground of smallness of damages in an A trial judge would not be justified in setting action for assault and battery, though the plain. aside tbe verdict of a jury and granting a new tif's cure by a surgeon was proved to be worth trial in an action for damages for negligence on 18 guineas, and no witness was produced by the account of insufficiency of damages, unless he defendant to controvert the fact.

was assured, on careful examination of the tesSo, in Pritchard v. llewitt, 91 Mo. 547, 4 S. timony, that the conclusion of the jury could not W. 437, a verdict for the plaintiff for $1 in an be supported on any reasonable theory, and was action for damages for maliciously assaulting wholly inconsistent with any fair deduction from and shooting and wounding the plaintif was up- the evidence. Brooks v. Ludin, 1 N. Y. Supp. held on motion to set it aside as inadequate, on 338, Afirmed in 25 Jones & S. 145, 6 N. Y. the ground that no standard was furnished in Supp. 510. the evidence by which the damage could be And a new trial in an action for damages for measured with any reasonable degree of cer- negligence ought not to be granted on the ground tainty.

that the damages are smaller than the court And even under the more modern doctrine may think reasonable, especially where the judge recognizing the period of disability and the cost who tried the cause is not displeased with the of medical attendance as an element of damages smallness of the damages. Gibbs v. Tunaley, 1 which could be measured, and permitting ver- C. B. 640. dicts to be set aside where the inadequacy was But while a verdict in an action for damages such as to shock the understanding and show bias for personal injuries will not as a general rule or prejudice, a new trial will not be granted ex. be disturbed merely on account of the smallness cept in very extreme cases. Bailey v. Cincin of the damages the court should interfere nati, 1 Handy (Ohio) 438.

where the damages under the circumstances are But a verdict for nominal damages in favor such as to shock the understanding and induco of the plaintiff in an action for damages for per the conviction that the verdict was the result sonal injuries by wounding by pistol shots fired of either passion, prejudice, or partiallty. Fair. without justification is inconsistent and unrea- grie v. Moberly, 29 Mo. App. 152; Lee 7. sonable, and will be set aside where the injuries Knapp, 137 Mo. 385, 38 S. W. 1107; Dowd v. were gross, and he was wholly disabled from Westinghouse Air Brake Co. 132 Mo. 579, 34 business, and considerable sums were expended S. W. 493 ; Boggess v. Metropolitan Street R. by him for medical attention and supplies. Co. 118 Mo. 328, 23 S. W. 159, 24 S. W. 210. Moseley v. Jamison, 68 Miss. 336, 8 So. 744. Or where the damages are such as to inducē

And a verdict of $500 for an assault from the conviction that the jury have shrunk from which the plaintiff received a scalp wound an deciding the issue submitted to them. Lee v. Inch and a half long, cut through to the bone, George Knapp & Co. 137 Mo. 385, 38 S. W. 1107. and which rendered it necessary to amputate Or that there were some objectionable com. bis arm above the elbow, and from which he suf- promises. O'Shea v. M'Lear, 15 N. Y. Civ. Proc. fered great pain both before and after the am- Rep. 69, 1 N. Y. Supp. 407. putation, is grossly inadequate, and should be And a new trial will be granted in an action set aside on that ground. Townsend v. Briggs, for personal injuries sustained through defend. 88 Cal. 230, 26 Pac. 108.

ant's negligence, on the ground of the inadeAnd a verdict for the plaintiff for $1 in an quacy of the damages found by the Jury, where action for a cruel and unprovoked assault will it appears from the facts proved that the jury be set aside and a new trial granted. Bacot v. must have omitted to take into consideration Keith, 2 Bay, 466.

some of the elements of damage properly IDvolved in the plaintiff's claim. Phillips v. fourths of the time, and made, when at work, South Western R. Co. L. R. 4 Q. B. Div. 406, from $4 to $7 per day, and that he had several 40 L. T. N. S. 813, 27 Week. Rep. 797, 48 L. J. children, one of whom was living with and deQ. B. N. S. 693, L. R. 5 Q. B. Div. 78, 41 L. T. pendent upon him for support. Mariani v. N, S. 121, 28 Week. Rep. 10, 49 L. J. Q. B. N. | Dougherty, 46 Cal. 26. 8. 233.

And the act of the trial judge in setting aside And the jury, in an action for personal in- as inadequate a verdict for the plaintiff for juries, cannot be said to have taken a reasonable $1,000, in an action for damages for Injuries view of the case, and considered all the heads of causing death, is not error where it appears damages involved in the plaintiff's claim, so as to that the deceased left a widow and four children, prevent a new trial on the ground of inade- the oldest eleven years of age, and that he was quacy, unless they have taken into account the a laboring man earning $2 per day and charged bodily injury sustained, the pain undergone, the with the support of his wife and children, and effect on the health of the person injured ac- that he was in good health prior to the accident. cording to its degree and probable duration, the Connor v. New York, 28 App. Div. 186, 50 N. Y. expense incidental to attempts to effect a cure Supp. 972. or lessen the injury, and the pecuniary loss sus- But a verdict for $500 in favor of a widow tained through inability to attend to a profes- for the negligent killing of her husband does not sion or business, and the duration of such ina evidence passion, prejudice, or corruption on the bility. Phillips v. South Western R. Co. L. R. part of the jury, which would authorize the 4 Q. B. Div. 406, 40 L. T. N. S. 813, 27 Week. court to set it aside, where the facts do not Rep. 797, 48 L. J. Q. B. N. S. 693.

make a strong case for the plalntif, and the See also, on this subject, supra, IV. a. And accident was such as would be frequently liable see Gaither v. Kansas City, etc. R. Co. 27 l'ed. to happen. Chesapeake, O. & S. W. R. Co. v. Rep. 545; Gann v. Worman, 69 Ind. 458,- | Higgins, 85 Tenn. 620. infra, VII.

So, a verdict of one cent in an action by a 2. What sufficient to show bias or omission of of an elevator is inadequate, and cannot be sus

parent for the killing of his child by the falling duty-instances.

talned, where the evidence shows a net profit The question as to what is sufficient to show

of $12 per month to the plaintiff from the bias or prejudice or that the jury omitted to child's wages, and an outlay by him of $150 consider some of the elements of damage depends for the child's funeral. Lee v. George Knapp upon the character and extent of the injury and

& Co. 137 Mo. 885, 38 S. W, 1107. the surrounding circumstances, and must be de

But a verdict for $375 in an action for damtermined, therefore, in every instance with ref

ages for the death of a child will not be set erence to the facts of the particular case.

aside for inadequacy, where the child was but Thus, a verdict that the defendant is guilty three and one half years of age, and never had of such neglect or default as results in the any earning capacity. Reger v. Rochester R. death of a human being, but allowing only noml-Co. 2 App. Div. 5, 37 N. Y. Supp. 520. oal damages to the beneficial plaintiff, who ap

So, a verdict for $175 in an action for the pears from the evidence to have suffered sub. negligent killing of a boy sixteen years and ten stantial pecuniary loss by reason of such death, months old, brought by his parents, will not be falls upon the court to subject the cause to an

set aside as inadequate, where no evidence was investigation to ascertain if the verdict upon given as to the boy's health or characteristics the whole case administers justice between the or adaptation to business or habits of industry parties. Hackett v. Pratt, 52 Ill. App. 346. or economy, or whether he contributed to the

And evidence in an action for negligently support of the family or lived with his parents, causing death that the person killed earned $18 all that appeared being his age, and the fact per week, and provided a home for and sup

that for two or three months he had earned ported his two daughters, and was educating $7.50 per week. Leahy v. Davis, 121 Mo. 227, and contributing to the support of a nephew, 25 S. W. 941. furnishes a reasonably certain measure of dam

And a verdict for $1,000 each in an action for ages therefor, so as to authorize setting aside the negligent killing of two sisters, will not be a verdict which was wholly inadequate to com

set aside as inadequate, the same sum having pensate the beneficial plaintiffs for the wrong. been found by both juries, both of which seemed Ibid.

to be intelligent and impartial. Linss v. ChesaSo, a verdict for the plaintiff for $150, in an peake & O. R. Co. 91 Fed. Rep. 964. action by a husband for the negligent killing Under the provisions of the Missouri damage of his wife, is inadequate, and will be set aside act, $ 2121, the plaintiffs in an action by parand a new trial ordered, where it appears that

ents for damages for the death of a minor child the husband spent $120 for her funeral expenses by negligence are entitled to recover the sum of and about $25 for belp to fill her place, and $5,000 or nothing, and a verdict assessing the that she was sixty years of age and a strong damages at $2,500 will be arrested on motion of and healthy woman who did a man's work in his the defendant. Rafferty v. Missouri P. R. Co. milk business, and acted as his housekeeper be- 15 Mo. App. 559. sides. Meyer v. Hart, 23 App. Div. 131, 48 N.

So, in actions for personal injuries not causY. Supp. 904.

ing death a verdict of $1 or less for mere nomi. And a verdict for $1 in favor of a wife in an pal damages has been held inadequate, and been action for damages for negligently causing the set aside and a new trial granted. death of her husband is grossly inadequate, and Where it appeared that the injuries were very will be set aside where it appears that he sup- severe, and caused much suffering, in Chouported his wife comfortably by his labor, and quette v. Southern Electric R. Co. (Mo.) 53 S. earned about $100 per month, and that she was W. 897. deprived of that support. Wolford v. Lyon

And where it appeared that the plaintiff was Gravel Gold Min. Co. 63 Cal. 483.

rendered unconscious by his injury, and had to And setting aside a verdict and judgment for

about five weeks in the county bo ital, $200 and granting a new trial are not an abuse two weeks of which time he was confined to his of discretion in an action for damages for neg- bed, in Carter v. Wells, F. & Co. 64 Fed. Rep. Ilgently causing death, where it appears that | 1005. the person killed found employment about three And where the injuries were serious, if not


permanent, and confined the plaintiff to her bed cause. Kelly v. Rochester, 38 N. Y. S. R. 797, for several months, and caused great suffering, 15 N. Y. Supp. 29. and compelled her to lose a winter from school, And a verdict for $24.27 in favor of the plain. In Fairgrieve v. Moberly, 29 Mo. App. 152. tif in an action for damages for personal in

And where, by the uncontradicted evidence, juries caused by a defective crosswalk, being the plaintiff remained insensible through the such as entitled the defendant to recover costs day from the injuries received, and could not amounting to more than the verdict, will be set use his feet for ten or twelve days, and was aside as perverse, and a new trial ordered, where laid up nearly five months, and confined most it appears that his shoulder was very much inof the time to his house, in Robbins v. Hudson Jured, and that he suffered much pain for a con. River R. Co. 7 Bosw. 1.

siderable time, and was compelled to carry his And when the plaintiff's head was cut in two arm in a sling for two months, and was unable places which had to be sewed up, one of the cuts to use it as before in his business. Whitney v. being about 3 inches long, and she had to be Milwaukee, 65 Wis. 409, 27 N. W. 39. taken to the city dispensary and her wounds And a verdict for $50 in favor of the plaintii dressed, after which she was taken home and in an action for an injury caused by the neglect lay in bed for over a week, after which she was of a city to keep a public street in repair will be sent to another infirmary and remained two or set aside as inadequate where it appears that three weeks, and her health was not as good the plaintiff was thrown from his horse by rea. after as before the injury, in Welch v. McAllis- son of the defect, and suffered for several months ter, 13 Mo. App. 89.

from the fracture of his collar bone, and that he And where the plaintiff was ejected by force was rendered unable to work, and had been em. from one of the defendant's trains, and had to ployed at from $3 to $5 per day, and that his undergo a three hours walk by night, and he tes physical strength was impaired and one of his tified to the aggravation of a disease by which arms stiffened, and that his surgeon's bill was he had been affected, and the court charged the about $40. Bailey v. Cincinnati, 1 Handy (Ohio) Jury that ii they found for him they should find

438. such a verdict as would fully compensate him So, a verdict for $55 in an action for injuries for the injury he had suffered, and justly mark to person and property is insufficient, and will their appreciation of the character of the wrong, be set aside and a new trial granted, where it in Le Vann v. Pennsylvania R. Co. 5 W. N. C. appears from the evidence that one of the shafts 293.

of the plaintiff's wagon was broken, and that it And where it appeared that the plaintiff had wás otherwise injured, and that he was in bed paid £4, 108. for medical attendance upon his six weeks and lost time in his business, and paid wife, who was injured, in Tedd v. Douglas, 5 $88 doctor's bills. Saperstone v. Rochester R. C. B. N. S. 895.

Co. 25 App. Div. 285, 49 N. Y. Supp. 486. And a verdict for the plaintif for one shilling And a verdict for $100 in an action for damin an action for damages for personal Injuries ages for personal injuries against a railroad Is inadequate, and will be set aside as bearing company will be set aside as inadequate where it no reasonable proportion to the nature of the appears that the plaintiff was considerably injuries, where it appears that the plaintiff was bruised, and his ankle was broken, and he was knocked down and run over by a cart, and the confined to his bed for three months and not back of his head and forehead cut, and his loin able to work for nine months, and had to use hurt, and he was rendered senseless for some crutches for several months after he left his time, and confined to his bed for three days, and bed, and suffered great pain, and was made a laid up for six weeks, and had to employ others cripple for life, and incurred expenses for medl. to do his work. Beattle v. Moore, Ir. L. R. 2 cine and medical service amounting to $100, and Eq. 28.

that his time was worth $200 per month. MI So, a verdict of 64 cents in an action for chalke v. Galveston, H. & S. A. R. Co. (Tex. damages caused by negligence, in which there Clv. App.) 27 S. W. 164. was uncontradicted evidence as to the serious And a verdict for $108 in an action by a nature of the plaintiff's injuries, and an actual trained nurse for a personal injury will be set outlay for surgical attendance and loss of earn- aside as omitting some of the heads of damages ing power, is inadequate, and is not condoned which should have been considered, where it apby a provisional order made by the trial court pears that she was earning from $20 to $25 a for a new trial which the plaintiff refused to ac-week, and that her leg was broken and she was cept, and such order should be reversed on aprendered unable to work for many weeks, and peal and a venire de novo awarded. Bradwell that she incurred a doctor's bill of $108. Brown v. Pittsburgh & W. E. Pass. R. Co. 139 Pa. 404, v. Foster, 1 App. Div. 578, 37 N. Y. Supp. 502. 20 Atl. 1046.

So, a verdict for $125 in an action for a And a verdict for the plalntif for $10 in an personal injury is inadequate, and will be set action for damages for injuries received by him aside and a new trial granted where it appears from falling at night over a pile of stones on that previous to the injury the plaintiff had a sidewalk, will be set aside as grossly Inade- been earning $4.50 per day, and was pretty quate, and a new trial granted on payment of constantly at work, and that by reason of the costs, unless an Increase of the amount is as injury he was confined to his bed and couch sented to, where it appears that he sustained for eight weeks and to the house about three severe bruises upon his mouth and face, and one months, and that since the injury he had been of his teeth was knocked out. Richards v. Sand- unable to work as well as usual, and that his ford, 2 E. D. Smith, 349.

doctor's bill was $500. Lough v. Romaine, 4 And a verdict for $15, in an action for dam-Jones & S. 332. ages for Injuries resulting to the plaintif from And where the plaintiff's toes were crushed a fall on a sidewalk rendered unsafe by Ice, is in a railway accident and the great toe had to grossly inadequate and will be set aside, where be amputated, and two others were badly lacerit appears that as a result of his fall the plain- ated, and one of them permanently injured, and tiff sustained a fracture of two ribs, suffered lameness caused which was likely to be permagreat pain in his side for some months, was nent, and he was under surgical treatment for wholly disabled from labor for several months, four or five weeks and experienced considerable and there was evidence tending to show that a pain and suffering, a verdict for $250 should be weakness of the knees resulted from the same set aside as inadequate and disproportionate to



the nature of the injury, and

trial | 129, 52 Fed. Rep. 390, 3 C. C. A. 155, an award granted. Henderson v. St. Paul & D. R. Co. 52 of $2,286 to the libellant in a libel against a Minn. 479, 55 N. W. 53.

steamship for damages for personal injuries was And a verdict for $400 in an action for dam- held sufficient on appeal from the award, it apages resulting from negligence is inadequate and pearing that he was a stevedore's laborer be. will not be permitted to stand, where it appears tween twenty-five and thirty years old, earning that the plaintiff received injuries most serious $375 per year, and that the injury necessitated in their character, from which she suffered the amputation of his leg below the knee. greatly for three years and until the time of And a verdict for $1,100 in an action for damthe trial, and which were probably permanent ages for personal injuries to the plaintiff, reand might shorten her life, and which rendered sulting in the loss of her right leg below the her unable to discharge ber domestic duties, knee, will not be set aside and a new trial which inability would probably be permanent. granted solely on the ground that the damages l'latz v. Cohoes, 8 Abb. N. C. 392.

are inadequate. Berry v. Lake Erie & W. R. Co. So, a verdict for $500 in an action for dam- 72 Fed. Rep. 488. ages for personal Injury due to alleged negll- Nor is a verdict for $1,000 in an action for gence will be set aside as totally inadequate and damages for personal injuries so inadequate as a new trial granted, where the injuries resulted to require the court to set it aside, though it In shortening one of the legs of the plaintiff appears that some of the plaintiff's ribs were and making it impossible for him to endure fractured and one of her hips injured, perhaps beavy work requiring him to remain on his permanently, and that she was laid up for sev feet, and he had been getting $2 a day, and was eral weeks and her health seemed impaired, and kept out of employment up to the time of the that three years afterwards at the time of the trial, and had undergone expenditures aggre- trial she was still somewhat lame, and comgating nearly $400. Morrissey v. Westchester plained of pain. McDermott v. Chicago & N. Electric R. Co. 30 App. Div. 424, 52 N. Y. Supp. W. R. Co. 85 Wis. 102, 55 N. W. 179. 945.

And refusal of the trial Judge to set aside a And a verdict for $700 in an action for dam- verdict for $100 in an action for damages for ages for a personal injury will be set aside on personal Injuries on the ground of inadequacy the ground that the jury must have overlooked as the result of passion, prejudice, or partial. some of the elements of the plaintiff's claims ity, will not be reversed on appeal though the entitling him to damages, where It appears that plaintif received a compound fracture of the he was a physician having a large practice, leg and Injuries to his back and head.

Dowd v. and it was anticipated that the Injury would be Westinghouse Air Brake Co. 132 Mo. 579, 34 permanent, and there was evidence tending to S. W. 493. show a falling off of his professional earnings And a verdict for the plaintiff for $30 in an during the half year following the injury of up-action for negligent injury will be allowed to wards of $3,000. Church v. Ottawa, 25 Ont. stand, though the plaintif claimed to have been Rep. 298.

kept from his business two months at a loss of And a verdict for $1,000 for the plaintiff in $50 per day, and that be pald a physician's bill an action for personal injuries due to negli- of $160, where there was some contradiction in gence is totally Inadequate, where, previous to the evidence, so that the jury may have believed the injury, she was a healthy young woman de- that the nature and extent of the injury were pending upon her own labor for her livelihood, exaggerated by the witness, and that it was in and she suffered greatly from the injury, and fact too light and too trivial to render necessary was rendered unable to walk, sit erect, or rige elther bis absence from his ordinary business or in bed, even upon her elbow, and was perma- the protracted employment of medical assist. nently and totally deprived of her ability to earn ance. Brooks v. Ludin, 1 N. Y. Supp. 338. a livelihood, and her expenses on account of So, merely nominal damages of 18. in favor ber injury amounted to $3,000 besides her loss of the plaintiff in an action for a personal inof earnings of $4 per week for three years. Jury will not be set aside as inadequate where Smith v. Dittman, 16 Daly, 427, 11 N. Y. Supp. there was nothing improper in the conduct of 769.

the jury, and the plaintif was not much hurt, And the jury in an action for personal in. and was at the time of the trial as good a man juries will not be deemed to have taken into as ever. Howard v. Barnard, 11 C. B. 653. consideration all of the elements of damages And a verdict for the plaintif for $1, in an wbich ought to have been taken into account action for injuries alleged to have been caused in finding a verdict for £7,000, where it appears by the plaintiff's being pushed from the defendthat tbe plaintiff was a man of middle age and ant's train while in motion, will not be regarded of robust health, and his health was irreparably as being so small as to show prejudice on the injured to such a degree as to render life a bur. part of the jury, where it appears by the evi. den and a source of misery, and that he had un- dence that it happened about 10 or 11 o'clock dergone great pain and would probably never at night, and that the plaintiff walked to his recover, and that the expenses incurred had al- home and retired to his bed where he remained ready amounted to £1,000, and that medical at- until morning, without calling attention to the tendance was still necessary and likely to be fact that he had been hurt, and was seen walk. for a long time, and that he was making an in- ing about town as usual the next morning with come of £5,000 a year, the amount of which a small plaster on his face, though his testihad been entirely lost for sixteen months since mony that he received severe bruises and had the accident. Phillips v. South Western R. Co. experienced much suffering, and that his capacL. R. 4 Q. B. Div. 406, 40 L. T. N. S. 813, 27 ity for labor had been much impaired, was cor. Week. Rep. 797, 48 L. J. Q. B. N. S. 693.

roborated by his wife. Allison v. Gulf, C. & S. In McGowan v. Interstate Consol. Street R. F. R. Co. (Tex. Civ. App.) 29 S. W. 425. Co. 20 R. I. 264, 38 Atl. 497, however, it was A new trial cannot be granted in an action beld that a verdict for $5,000 in an action for for a personal injury under Iowa Code, $ 2839, damages for personal injuries sustained througbon account of the smallness of the damages, degligence will not be set aside as inadequate, where no proof was made on the trial of any though the evidence shows a very serious, and actual pecuniary damage sustained. Kinser v. probably permanent, injury.

Soap Creek Coal Co. 85 Iowa, 26, 51 N. W. And in The William Branfoot, 8 U. S. App. 1151.

t statutory provisions as to smallness of dam- | 367, 5 S. W. 867; Taylor v. Howser, 12 Bush, ages for personal injury.

465. lowa, and perhaps other states, have provided granting of a new trial for inadequate damages

But while such provision does not prevent the by statute that a new trial shall not be granted in a case where the damage may be arrived at on account of the smallness of the damages, by ordinary computation, and the inadequacy in an action for Injury to the person or reputa of the verdict ascertained by mathematical de tion, where the damages equal the actual pecun- monstration, as in case of damages consisting lary injury sustained. it may properly be inferred from this provl loss of business, etc., it will not be granted

of loss of time, of wages, expenditures incurred, sion that a new trial may be granted when the where there was no loss of health or permanent damages found by the jury are less than the injury, and the plaintiff was a minor. living actual pecuniary damages sustained. Kinser v. Soap Creek Coal Co. 85 lowa, 26, 51 N. W. titled to her earnings nor responsible for her

with her mother, and was therefore neither en. 1151. But it is not to be inferred that courts are re

doctors' bills or other expenses or losses that quired to grant new trials where the damages may have resulted from her injuries. Landdo not equal such injury. Hubbard v. Mason neler v. Cincinnati Street R. Co. 4 Ohlo Dec. City, 64 Iowa, 245, 20 N. W. 172.

265. So, a number of the other states have pro

And such a provision is not to be read In convided by statute that a new trial shall not be nection with and as a proviso to another stat. granted on account of the smallness of the dam.

ute giving a right of action for the unlawful ages in an action for an injury done to the per- of property binding on the Federal courts in an

not therefore a rule

killing of a person, and is son or reputation, nor in any other action where action under the latter section so as to prevent the damages shall equal the pecuniary Injury it from setting aside a verdict in such an action sustained. The rule adopted by this provision follows

as inadequate. Hughey v. Sullivan, 80 Fed. the common law. Jesse v. Shuck, 11 Ky. L.

Rep. 72. Rep. 463, 12 S. W. 304.

V. Effect of uncertainty as to cause of injury. And a new trial will not be granted in an action for injury to the person or reputation be- Uncertainty as to the cause of the injury sufcause of the smallness of the damages assessed fered, and as to the defendant's responsibility by the jury whether they equal the pecuniary for it, and as to whether or not the plaintif injury or not, but may be granted in other ac- might not be equally to blame, appears to have tions where the damages do not equal the pecun- been made a subject of consideration on the lary injury. Sharpe v. O'Brien, 39 Ind. 501. question of setting aside a verdict for inade

The statute prohibits the court from granting quacy, as going to sustain the verdict. a new trial on account of the smallness of the Thus, a verdict for the plaintiff in an action damages in case the damages assessed by the to recover damages for injury to property will jury equal the pecuniary loss, the words "nor not be set aside for inadequacy where the cause in any other action where the damages shall of the injury was a matter of conjecture beequal the pecuniary injury sustained" qualify-cause it was not as large as it probably would ing all the rest of the section. Sullivan v. wir. have been had the cause of injury been fully son, 15 Ind. 246.

proved. Benzon v. Burlington & M. River R. And it does not require that the damages Co. 18 Neb. 659, 26 N. W. 467. must be equal to the actual pecuniary injury And a verdict for nominal damages only, in in an action for damages for an injury to the an action for damages for overflowing lands of person or reputation, and a verdict for assault the plaintiff, will not be set aside where the and battery will not be set aside and a new trial Jury had reason to believe from the evidence ordered on account of the llness of the dam- that some part of the injury complained of was ages. Shoff v. Wells, 1 Neb. 168.

occasioned by an unlawful act of the defendant, And an action brought by the administrator but that the damages resulting from such act of a minor to recover damages for causing the bore no appreciable proportion to those actually minor's death is an action for a personal in- sustained by the plaintiff and resulting from Jury within the meaning thereof. Gentile v. other causes. Phillips v. Phillips, 34 N. J. L. Cincinnati Street R. Co. 4 Ohio N. P. 9.

208. But while it applies to actions for assault, Nor will a verdict for twenty-five cents in libel, slander, and false imprisonment, it does favor of the plaintiff, in an action for damages not extend to those cases in which the action is to grain destroyed by hogs, be set aside as intechnically founded in tort, but the damages adequate where it appears that the injury was are to be measured by the amount of the actual not all committed by the defendant's hogs, and expenses the party has incurred, the loss of his there is nothing to show the comparative time, the duration of his disability, and other amount of damage committed by them, or the circumstances that can be estimated in a large whole number of hogs committing the injury. measure by ordinary computation. Bailey v. Blanchard v. Loges, 11 Neb. 460, 9 N. W. 568. Cincinnati, 1 Handy (Ohio) 438.

So, a verdict for the plaintiff in an action And it does not apply as to special damages for damages to his pasture because of failure when they are pleaded and proved in such a of a railroad company to erect proper cattle case; and where the verdict is such as to show guards, for a less amount than the estimates plainly that as to them both the proof and the given by the witnesses by several hundred dollaw as contained in the instructions have been lars, will not be set aside where the evidence disregarded by the jury, a new trial should be was confused and uncertain, and in such a shape granted. Jesse v. Shuck, 11 Ky. L. Rep. 463, as to render it impossible to determine accur. 12 S. W. 304.

ately how much of the damages was caused by Nor does it apply to the assessment of the stock going in on the right of way of the railactual pecuniary damages resulting directly road, and how much was caused by stock going from the wrong, and when the damages can be in at other places. Chicago, R. I. & T. R. Co. v. measured and the injury is such as to demon- Yarbrough (Tex. Civ. App.) 35 S. W. 422. strate that as to the damages the proof and the And a verdict for $167 in an action for damlaw of the case were disregarded, a new trial ages for personal injuries will not be set aside ought to be granted. Ray v. Jeffries, 86 Ky. 'as inadequate where the testimony tends to

« AnteriorContinuar »