and humillated by being put in jail, where it does not appear that he could have got other equally profitable employment after he was discharged, or that he had not lost his employment when first arrested. Taylor v. Davis (Tex.) 13 S. W. 642.

So, a judgment for a nominal sum in an action for malicious prosecution will not be reversed because the jury did not allow the plaintiff the counsel fees paid by him in defending himself against such prosecution, though the jury would have been at liberty to allow such fees. The rule that in an action for malicious prosecution the jury may award the plaintiff the damages directly sustained by him in the defense of the original suit or prosecution against him, including reasonable counsel fees, is not imperative, and a verdict for the plaintiff for $1 in such a case will not be set aside as in disregard of an instruction to assess such damages as the jury believed he suffered, where the evidence showed that he had expended $101 as attorneys' fees in securing his release, as the jury may have disregarded the evidence. Gregory v. Chambers, 78 Mo. 294.

d. Actions for assault and battery and other torts.

Actions for assault and battery, etc., seem to be governed by the same rule as those for malicious prosecution and false imprisonment, and the verdict was formerly deemed conclusive without reference to its smallness.

Thus, in Donelly v. Baker, Barnes' Notes, 154, the court refused to set aside a verdict for £8 on the ground of smallness of damages in an action for assault and battery, though the plaintiff's cure by a surgeon was proved to be worth 18 guineas, and no witness was produced by the defendant to controvert the fact.

So, in Pritchard v. Hewitt, 91 Mo. 547, 4 S. W. 437, a verdict for the plaintiff for $1 in an action for damages for maliciously assaulting and shooting and wounding the plaintiff was upheld on motion to set it aside as inadequate, on the ground that no standard was furnished in the evidence by which the damage could be measured with any reasonable degree of certainty.

And even under the more modern doctrine recognizing the period of disability and the cost of medical attendance as an element of damages which could be measured, and permitting verdicts to be set aside where the inadequacy was such as to shock the understanding and show bias or prejudice, a new trial will not be granted except in very extreme cases. Bailey v. Cincinnati, 1 Handy (Ohio) 438.

But a verdict for nominal damages in favor of the plaintiff in an action for damages for personal injuries by wounding by pistol shots fired without justification is inconsistent and unreasonable, and will be set aside where the injuries were gross, and he was wholly disabled from business, and considerable sums were expended by him for medical attention and supplies. Moseley v. Jamison, 68 Miss. 336, 8 So. 744.

And a verdict of $500 for an assault from which the plaintiff received a scalp wound an inch and a half long, cut through to the bone, and which rendered it necessary to amputate his arm above the elbow, and from which he suffered great pain both before and after the amputation, is grossly inadequate, and should be set aside on that ground. Townsend v. Briggs, 88 Cal. 230, 26 Pac. 108.

And a verdict for the plaintiff for $1 in an action for a cruel and unprovoked assault will be set aside and a new trial granted. Bacot v. Keith, 2 Bay, 466.

So, a verdict in favor of a married woman for $1, in an action brought by her against a saloon keeper for damages resulting from loss of support by the intoxication of her husband, for the sum of $1.000 for the benefit of her individual estate, cannot be sustained. Greenlee v. Schoenheit, 23 Neb. 669, 37 N. W. 600.

And in Page v. Carter, referred to in Apps v. Day, 14 C. B. 112, a rule was made absolute for a new trial in an action of crim. con. on the ground that the verdict was against the evidence though the damages were under £20, because it involved a question of character.

See also Shoff v. Wells, 1 Neb. 168, infra, IV. f.

e. Actions for personal injuries caused by negligence.

1. General rules as to.

The court has power to set aside a verdict in an action for damages for personal injury resulting from negligence, upon the ground that it is grossly inadequate and disproportionate to the injury suffered. Henderson v. St. Paul & D. R. Co. 52 Minn. 479, 55 N. W. 53.

But a verdict in an action for substantial damages for personal injuries caused by negllgence will not be set aside for inadequacy unless it is such as to shock the conscience and clearly show that the jury must have been influenced by passion or prejudice, or that they proceeded upon some erroneous basis in arriving at their conclusion. McGowan V. Interstate Consol. Street R. Co. 20 R. I. 264, 38 Atl. 497.

A trial judge would not be justified in setting aside the verdict of a jury and granting a new trial in an action for damages for negligence on account of insufficiency of damages, unless he was assured, on careful examination of the testimony, that the conclusion of the jury could not be supported on any reasonable theory, and was wholly inconsistent with any fair deduction from the evidence. Brooks v. Ludin, 1 N. Y. Supp. 338, Affirmed in 25 Jones & S. 145, 6 N. Y. Supp. 510.

And a new trial in an action for damages for negligence ought not to be granted on the ground that the damages are smaller than the court may think reasonable, especially where the judge who tried the cause is not displeased with the smallness of the damages. Gibbs v. Tunaley, 1

C. B. 640.

But while a verdict in an action for damages for personal injuries will not as a general rule be disturbed merely on account of the smallness of the damages the court should interfere where the damages under the circumstances are such as to shock the understanding and induce the conviction that the verdict was the result of either passion, prejudice, or partiality. Fairgrieve v. Moberly. 29 Mo. App. 152; Lee v. Knapp, 137 Mo. 385, 38 S. W. 1107; Dowd v. Westinghouse Air Brake Co. 132 Mo. 579, 34 S. W. 493; Boggess v. Metropolitan Street R. Co. 118 Mo. 328, 23 S. W. 159, 24 S. W. 210.

Or where the damages are such as to induce the conviction that the jury have shrunk from deciding the issue submitted to them. Lee V. George Knapp & Co. 137 Mo. 385, 38 S. W. 1107.

Or that there were some objectionable compromises. O'Shea v. M'Lear, 15 N. Y. Civ. Proc. Rep. 69, 1 N. Y. Supp. 407.

And a new trial will be granted in an action for personal injuries sustained through defendant's negligence, on the ground of the inadequacy of the damages found by the jury, where it appears from the facts proved that the jury must have omitted to take into consideration some of the elements of damage properly in.

volved in the plaintiff's claim. Phillips v. South Western R. Co. L. R. 4 Q. B. Div. 406, 40 L. T. N. S. 813, 27 Week. Rep. 797, 48 L. J. Q. B. N. S. 693, L. R. 5 Q. B. Div. 78, 41 L. T. N. S. 121, 28 Week. Rep. 10, 49 L. J. Q. B. N. 8. 233.

And the jury, in an action for personal injuries, cannot be said to have taken a reasonable view of the case, and considered all the heads of damages involved in the plaintiff's claim, so as to prevent a new trial on the ground of inadequacy, unless they have taken into account the bodily injury sustained, the pain undergone, the effect on the health of the person injured according to its degree and probable duration, the expense incidental to attempts to effect a cure or lessen the injury, and the pecuniary loss sustained through inability to attend to a profession or business, and the duration of such inability. Phillips v. South Western R. Co. L. R. 4 Q. B. Div. 406, 40 L. T. N. S. 813, 27 Week. Rep. 797, 48 L. J. Q. B. N. S. 693.

See also, on this subject, supra, IV. a. And see Gaither v. Kansas City, etc. R. Co. 27 Fed. Rep. 545; Gann v. Worman, 69 Ind. 458,infra, VII.

fourths of the time, and made, when at work, from $4 to $7 per day, and that he had several children, one of whom was living with and dependent upon him for support. Mariani v. Dougherty, 46 Cal. 26.

And the act of the trial judge in setting aside as inadequate a verdict for the plaintiff for $1,000, in an action for damages for injuries causing death, is not error where it appears that the deceased left a widow and four children, the oldest eleven years of age, and that he was a laboring man earning $2 per day and charged with the support of his wife and children, and that he was in good health prior to the accident. Connor v. New York, 28 App. Div. 186, 50 N. Y. Supp. 972.

But a verdict for $500 in favor of a widow for the negligent killing of her husband does not evidence passion, prejudice, or corruption on the part of the jury, which would authorize the court to set it aside, where the facts do not make a strong case for the plaintiff, and the accident was such as would be frequently liable to happen. Chesapeake, O. & S. W. R. Co. v. Higgins, 85 Tenn. 620.

So, a verdict of one cent in an action by a parent for the killing of his child by the falling

duty-instances.

The question as to what is sufficient to show blas or prejudice or that the jury omitted to consider some of the elements of damage depends upon the character and extent of the injury and the surrounding circumstances, and must be determined, therefore, in every instance with reference to the facts of the particular case.

Thus, a verdict that the defendant is guilty of such neglect or default as results in the death of a human being, but allowing only nominal damages to the beneficial plaintiff, who appears from the evidence to have suffered substantial pecuniary loss by reason of such death, falls upon the court to subject the cause to an investigation to ascertain if the verdict upon the whole case administers justice between the parties. Hackett v. Pratt, 52 Ill. App. 346.

And evidence in an action for negligently causing death that the person killed earned $18 per week, and provided a home for and supported his two daughters, and was educating and contributing to the support of a nephew, furnishes a reasonably certain measure of damages therefor, so as to authorize setting aside a verdict which was wholly inadequate to compensate the beneficial plaintiffs for the wrong. Ibid.

So, a verdict for the plaintiff for $150, in an action by a husband for the negligent killing of his wife, is inadequate, and will be set aside and a new trial ordered, where it appears that the husband spent $120 for her funeral expenses and about $25 for help to fill her place, and that she was sixty years of age and a strong and healthy woman who did a man's work in his milk business, and acted as his housekeeper besides. Meyer v. Hart, 23 App. Div. 131, 48 N. Y. Supp. 904.

And a verdict for $1 in favor of a wife in an action for damages for negligently causing the death of her husband is grossly inadequate, and will be set aside where it appears that he supported his wife comfortably by his labor, and earned about $100 per month, and that she was deprived of that support. Wolford v. Lyon Gravel Gold Min. Co. 63 Cal. 483.

And setting aside a verdict and judgment for $200 and granting a new trial are not an abuse of discretion in an action for damages for negligently causing death, where it appears that the person killed found employment about three

the

tained, where the evidence shows a net profit of $12 per month to the plaintiff from child's wages, and an outlay by him of $150 for the child's funeral. Lee v. George Knapp & Co. 137 Mo. 385, 38 S. W. 1107.

But a verdict for $375 in an action for damages for the death of a child will not be set aside for inadequacy, where the child was but three and one half years of age, and never had any earning capacity. Reger v. Rochester R. Co. 2 App. Div. 5, 37 N. Y. Supp. 520.

So, a verdict for $175 in an action for the negligent killing of a boy sixteen years and ten months old, brought by his parents, will not be set aside as inadequate, where no evidence was given as to the boy's health or characteristics or adaptation to business or habits of industry or economy, or whether he contributed to the support of the family or lived with his parents, all that appeared being his age, and the fact that for two or three months he had earned $7.50 per week. Leahy v. Davis, 121 Mo. 227, 25 S. W. 941.

And a verdict for $1,000 each in an action for the negligent killing of two sisters, will not be set aside as inadequate, the same sum having been found by both juries, both of which seemed to be intelligent and impartial. Linss v. Chesapeake & O. R. Co. 91 Fed. Rep. 964.

Under the provisions of the Missouri damage act, § 2121, the plaintiffs in an action by parents for damages for the death of a minor child by negligence are entitled to recover the sum of $5,000 or nothing, and a verdict assessing the damages at $2,500 will be arrested on motion of the defendant. Rafferty v. Missouri P. R. Co. 15 Mo. App. 559.

So, in actions for personal injuries not causing death a verdict of $1 or less for mere nominal damages has been held inadequate, and been set aside and a new trial granted.

Where it appeared that the injuries were very severe, and caused much suffering, in Chouquette v. Southern Electric R. Co. (Mo.) 53 S. W. 897.

And where it appeared that the plaintiff was rendered unconscious by his injury, and had to remain about five weeks in the county hospital, two weeks of which time he was confined to his bed, in Carter v. Wells, F. & Co. 64 Fed. Rep. 1005.

And where the injuries were serious, if not

And where, by the uncontradicted evidence, the plaintiff remained insensible through the day from the injuries received, and could not use his feet for ten or twelve days, and was laid up nearly five months, and confined most of the time to his house, in Robbins v. Hudson River R. Co. 7 Bosw. 1.

And when the plaintiff's head was cut in two places which had to be sewed up, one of the cuts being about 3 inches long, and she had to be taken to the city dispensary and her wounds dressed, after which she was taken home and lay in bed for over a week, after which she was sent to another infirmary and remained two or three weeks, and her health was not as good after as before the injury, in Welch v. McAllister, 13 Mo. App. 89.

And where the plaintiff was ejected by force from one of the defendant's trains, and had to undergo a three hours walk by night, and he testified to the aggravation of a disease by which he had been affected, and the court charged the Jury that if they found for him they should find such a verdict as would fully compensate him for the injury he had suffered, and justly mark their appreciation of the character of the wrong, in Le Vann v. Pennsylvania R. Co. 5 W. N. C. 293.

And where it appeared that the plaintiff had paid £4, 108. for medical attendance upon his wife, who was injured, in Tedd v. Douglas, 5 C. B. N. S. 895.

And a verdict for the plaintiff for one shilling in an action for damages for personal injuries Is inadequate, and will be set aside as bearing no reasonable proportion to the nature of the injuries, where it appears that the plaintiff was knocked down and run over by a cart, and the back of his head and forehead cut, and his loin hurt, and he was rendered senseless for some time, and confined to his bed for three days, and laid up for six weeks, and had to employ others to do his work. Beattie v. Moore, Ir. L. R. 2 Eq. 28.

So, a verdict of 64 cents in an action for damages caused by negligence, in which there was uncontradicted evidence as to the serious nature of the plaintiff's injuries, and an actual outlay for surgical attendance and loss of earning power, is inadequate, and is not condoned by a provisional order made by the trial court for a new trial which the plaintiff refused to accept, and such order should be reversed on appeal and a venire de novo awarded. Bradwell V. Pittsburgh & W. E. l'ass. R. Co. 139 Pa. 404, 20 Atl. 1046.

And a verdict for the plaintiff for $10 in an action for damages for injuries received by him from falling at night over a pile of stones on a sidewalk, will be set aside as grossly inadequate, and a new trial granted on payment of costs, unless an increase of the amount is assented to, where it appears that he sustained severe bruises upon his mouth and face, and one of his teeth was knocked out. Richards v. Sandford, 2 E. D. Smith, 349.

And a verdict for $15, in an action for damages for injuries resulting to the plaintiff from a fall on a sidewalk rendered unsafe by ice, is grossly inadequate and will be set aside, where it appears that as a result of his fall the plaintiff sustained a fracture of two ribs, suffered great pain in his side for some months, was wholly disabled from labor for several months, and there was evidence tending to show that a weakness of the knees resulted from the same

And a verdict for $24.27 in favor of the plaintiff in an action for damages for personal injuries caused by a defective crosswalk, being such as entitled the defendant to recover costs amounting to more than the verdict, will be set aside as perverse, and a new trial ordered, where it appears that his shoulder was very much inJured, and that he suffered much pain for a considerable time, and was compelled to carry his arm in a sling for two months, and was unable to use it as before in his business. Whitney v. Milwaukee, 65 Wis. 409, 27 N. W. 39.

And a verdict for $50 in favor of the plaintiff in an action for an injury caused by the neglect of a city to keep a public street in repair will be set aside as inadequate where it appears that the plaintiff was thrown from his horse by reason of the defect, and suffered for several months from the fracture of his collar bone, and that he was rendered unable to work, and had been employed at from $3 to $5 per day, and that his physical strength was impaired and one of his arms stiffened, and that his surgeon's bill was about $40. Bailey v. Cincinnati, 1 Handy (Ohio) 438.

So, a verdict for $55 in an action for injuries to person and property is insufficient, and will be set aside and a new trial granted, where it appears from the evidence that one of the shafts of the plaintiff's wagon was broken, and that it was otherwise injured, and that he was in bed six weeks and lost time in his business, and paid $88 doctor's bills. Saperstone v. Rochester R. Co. 25 App. Div. 285, 49 N. Y. Supp. 486.

And a verdict for $100 in an action for damages for personal injuries against a railroad company will be set aside as inadequate where it appears that the plaintiff was considerably bruised, and his ankle was broken, and he was confined to his bed for three months and not able to work for nine months, and had to use crutches for several months after he left his bed, and suffered great pain, and was made cripple for life, and incurred expenses for medicine and medical service amounting to $100, and that his time was worth $200 per month. MIchalke v. Galveston, H. & S. A. R. Co. (Tex. Civ. App.) 27 S. W. 164.

And a verdict for $108 in an action by a trained nurse for a personal injury will be set aside as omitting some of the heads of damages which should have been considered, where it apDears that she was earning from $20 to $25 a week, and that her leg was broken and she was rendered unable to work for many weeks, and that she incurred a doctor's bill of $108. Brown v. Foster, 1 App. Div. 578, 37 N. Y. Supp. 502. So, a verdict for $125 in an action for personal injury is inadequate, and will be set aside and a new trial granted where it appears that previous to the injury the plaintiff had been earning $4.50 per day, and was pretty constantly at work, and that by reason of the injury he was confined to his bed and couch for eight weeks and to the house about three months, and that since the injury he had been unable to work as well as usual, and that his doctor's bill was $500. Lough v. Romaine, 4 Jones & S. 332.

And where the plaintiff's toes were crushed in a railway accident and the great toe had to be amputated, and two others were badly lacerated, and one of them permanently injured, and lameness caused which was likely to be permanent, and he was under surgical treatment for four or five weeks and experienced considerable pain and suffering, a verdict for $250 should be set aside as inadequate and disproportionate to

the nature of the injury, and a new trial granted. Henderson v. St. Paul & D. R. Co. 52 Minn. 479, 55 N. W. 53.

And a verdict for $400 in an action for damages resulting from negligence is inadequate and will not be permitted to stand, where it appears that the plaintiff received injuries most serious in their character, from which she suffered greatly for three years and until the time of the trial, and which were probably permanent and might shorten her life, and which rendered her unable to discharge her domestic duties, which inability would probably be permanent. I'latz v. Cohoes, 8 Abb. N. C. 392.

So, a verdict for $500 in an action for damages for personal injury due to alleged negllgence will be set aside as totally inadequate and a new trial granted, where the injuries resulted In shortening one of the legs of the plaintiff and making it impossible for him to endure heavy work requiring him to remain on his feet, and he had been getting $2 a day, and was kept out of employment up to the time of the trial, and had undergone expenditures aggregating nearly $400. Morrissey v. Westchester Electric R. Co. 30 App. Div. 424, 52 N. Y. Supp. 945.

And a verdict for $700 in an action for damages for a personal injury will be set aside on the ground that the jury must have overlooked some of the elements of the plaintiff's claims entitling him to damages, where it appears that be was a physician having a large practice, and it was anticipated that the Injury would be permanent, and there was evidence tending to show a falling off of his professional earnings during the half year following the injury of upwards of $3,000. Church v. Ottawa, 25 Ont. Rep. 298.

And a verdict for $1,000 for the plaintiff in an action for personal injuries due to negligence is totally inadequate, where, previous to the injury, she was a healthy young woman depending upon her own labor for her livelihood, and she suffered greatly from the injury, and was rendered unable to walk, sit erect, or rise in bed, even upon her elbow, and was permanently and totally deprived of her ability to earn a livelihood, and her expenses on account of her injury amounted to $3,000 besides her loss of earnings of $4 per week for three years. Smith v. Dittman, 16 Daly, 427, 11 N. Y. Supp. 769.

And the jury in an action for personal inJuries will not be deemed to have taken into consideration all of the elements of damages which ought to have been taken into account in finding a verdict for £7,000, where it appears that the plaintiff was a man of middle age and of robust health, and his health was irreparably injured to such a degree as to render life a burden and a source of misery, and that he had undergone great pain and would probably never recover, and that the expenses incurred had already amounted to £1,000, and that medical attendance was still necessary and likely to be for a long time, and that he was making an income of £5,000 a year, the amount of which had been entirely lost for sixteen months since the accident. Phillips v. South Western R. Co. L. R. 4 Q. B. Div. 406, 40 L. T. N. S. 813, 27 Week. Rep. 797, 48 L. J. Q. B. N. S. 693.

In McGowan v. Interstate Consol. Street R. Co. 20 R. I. 264, 38 Atl. 497, however, it was held that a verdict for $5,000 in an action for damages for personal injuries sustained through negligence will not be set aside as inadequate, though the evidence shows a very serious, and probably permanent, injury.

129, 52 Fed. Rep. 390, 3 C. C. A. 155, an award of $2.286 to the libellant in a libel against a steamship for damages for personal injuries was held sufficient on appeal from the award, it appearing that he was a stevedore's laborer between twenty-five and thirty years old, earning $375 per year, and that the injury necessitated the amputation of his leg below the knee.

And a verdict for $1,100 in an action for damages for personal injuries to the plaintiff, resulting in the loss of her right leg below the knee, will not be set aside and a new trial granted solely on the ground that the damages are inadequate. Berry v. Lake Erie & W. R. Co. 72 Fed. Rep. 488.

Nor is a verdict for $1,000 in an action for damages for personal injuries so inadequate as to require the court to set it aside, though it appears that some of the plaintiff's ribs were fractured and one of her hips injured, perhaps permanently, and that she was laid up for sev eral weeks and her health seemed impaired, and that three years afterwards at the time of the trial she was still somewhat lame, and complained of pain. McDermott v. Chicago & N. W. R. Co. 85 Wis. 102, 55 N. W. 179.

And refusal of the trial judge to set aside a verdict for $100 in an action for damages for personal injuries on the ground of inadequacy as the result of passion, prejudice, or partiality, will not be reversed on appeal though the plaintiff received a compound fracture of the leg and Injuries to his back and head. Dowd v. Westinghouse Air Brake Co. 132 Mo. 579, 34 S. W. 493.

And a verdict for the plaintiff for $30 In an action for negligent injury will be allowed to stand, though the plaintiff claimed to have been kept from his business two months at a loss of $50 per day, and that he paid a physician's bill of $160, where there was some contradiction in the evidence, so that the jury may have believed that the nature and extent of the injury were exaggerated by the witness, and that it was in fact too light and too trivial to render necessary either his absence from his ordinary business or the protracted employment of medical assistance. Brooks v. Ludin, 1 N. Y. Supp. 338.

So, merely nominal damages of 18. in favor of the plaintiff in an action for a personal injury will not be set aside as inadequate where there was nothing improper in the conduct of the jury, and the plaintiff was not much hurt, and was at the time of the trial as good a man as ever. Howard v. Barnard, 11 C. B. 653.

And a verdict for the plaintiff for $1, in an action for injuries alleged to have been caused by the plaintiff's being pushed from the defendant's train while in motion, will not be regarded as being so small as to show prejudice on the part of the jury, where it appears by the evidence that it happened about 10 or 11 o'clock at night, and that the plaintiff walked to his home and retired to his bed where he remained until morning, without calling attention to the fact that he had been hurt, and was seen walking about town as usual the next morning with a small plaster on his face, though his testimony that he received severe bruises and had experienced much suffering, and that his capacity for labor had been much impaired, was corroborated by his wife. Allison v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 29 S. W. 425.

A new trial cannot be granted in an action for a personal injury under Iowa Code, § 2839, on account of the smallness of the damages, where no proof was made on the trial of any actual pecuniary damage sustained. Kinser v. Soap Creek Coal Co. 85 Iowa, 26, 51 N. W.

Iowa, and perhaps other states, have provided by statute that a new trial shall not be granted on account of the smallness of the damages, in an action for injury to the person or reputation, where the damages equal the actual pecunlary injury sustained.

It may properly be inferred from this provision that a new trial may be granted when the damages found by the jury are less than the actual pecuniary damages sustained. Kinser v. Soap Creek Coal Co. 85 Iowa, 26, 51 N. W. 1151.

But it is not to be inferred that courts are required to grant new trials where the damages do not equal such injury. Hubbard v. Mason City, 64 Iowa, 245, 20 N. W. 172.

So, a number of the other states have provided by statute that a new trial shall not be granted on account of the smallness of the dam

ages in an action for an injury done to the person or reputation, nor in any other action where the damages shall equal the pecuniary injury sustained.

The rule adopted by this provision follows

the common law. Jesse v. Shuck, 11 Ky. L.

Rep. 463, 12 S. W. 304.

And a new trial will not be granted in an action for injury to the person or reputation because of the smallness of the damages assessed by the jury whether they equal the pecuniary injury or not, but may be granted in other actions where the damages do not equal the pecunlary injury. Sharpe v. O'Brien, 39 Ind. 501.

The statute prohibits the court from granting a new trial on account of the smallness of the damages in case the damages assessed by the jury equal the pecuniary loss, the words "nor In any other action where the damages shall equal the pecuniary injury sustained" qualifying all the rest of the section. Sullivan v. Wilson, 15 Ind. 246.

And it does not require that the damages must be equal to the actual pecuniary injury in an action for damages for an injury to the person or reputation, and a verdict for assault and battery will not be set aside and a new trial ordered on account of the smallness of the damages. Shoff v. Wells, 1 Neb. 168.

And an action brought by the administrator of a minor to recover damages for causing the minor's death is an action for a personal injury within the meaning thereof. Gentile v. Cincinnati Street R. Co. 4 Ohio N. P. 9.

But while it applies to actions for assault, libel, slander, and false imprisonment, it does not extend to those cases in which the action is technically founded in tort, but the damages are to be measured by the amount of the actual expenses the party has incurred, the loss of his time, the duration of his disability, and other circumstances that can be estimated in a large measure by ordinary computation. Bailey v. Cincinnati, 1 Handy (Ohio) 438.

And it does not apply as to special damages when they are pleaded and proved in such a case; and where the verdict is such as to show plainly that as to them both the proof and the law as contained in the instructions have been disregarded by the jury, a new trial should be granted. Jesse v. Shuck, 11 Ky. L. Rep. 463, 12 S. W. 304.

Nor does it apply to the assessment of the actual pecuniary damages resulting directly from the wrong, and when the damages can be measured and the injury is such as to demonstrate that as to the damages the proof and the law of the case were disregarded, a new trial ought to be granted. Ray v. Jeffries, 86 Ky.

But while such provision does not prevent the granting of a new trial for inadequate damages in a case where the damage may be arrived at by ordinary computation, and the inadequacy of the verdict ascertained by mathematical demonstration, as in case of damages consisting of loss of time, of wages, expenditures incurred, loss of business, etc., it will not be granted where there was no loss of health or permanent injury, and the plaintiff was a minor living

with her mother, and was therefore neither entitled to her earnings nor responsible for her doctors' bills or other expenses or losses that may have resulted from her injuries. Landneler v. Cincinnati Street R. Co. 4 Ohio Dec. 265.

And such a provision is not to be read in connection with and as a proviso to another statute giving a right of action for the unlawful killing of a person, and is not therefore a rule of property binding on the Federal courts in an action under the latter section so as to prevent it from setting aside a verdict in such an action as inadequate. Hughey v. Sullivan, 80 Fed. Rep. 72.

V. Effect of uncertainty as to cause of injury.

Uncertainty as to the cause of the injury suffered, and as to the defendant's responsibility for it, and as to whether or not the plaintiff might not be equally to blame, appears to have been made a subject of consideration on the question of setting aside a verdict for inadequacy, as going to sustain the verdict.

Thus, a verdict for the plaintiff in an action to recover damages for injury to property will not be set aside for inadequacy where the cause of the injury was a matter of conjecture because it was not as large as it probably would have been had the cause of injury been fully proved. Benzon v. Burlington & M. River R. Co. 18 Neb. 659, 26 N. W. 467.

And a verdict for nominal damages only, in an action for damages for overflowing lands of the plaintiff, will not be set aside where the jury had reason to believe from the evidence that some part of the injury complained of was occasioned by an unlawful act of the defendant, but that the damages resulting from such act bore no appreciable proportion to those actually sustained by the plaintiff and resulting from other causes.

208.

Phillips v. Phillips, 34 N. J. L.

Nor will a verdict for twenty-five cents in favor of the plaintiff, in an action for damages to grain destroyed by hogs, be set aside as inadequate where it appears that the injury was not all committed by the defendant's hogs, and there is nothing to show the comparative amount of damage committed by them, or the whole number of hogs committing the injury. Blanchard v. Loges, 11 Neb. 460, 9 N. W. 568.

So, a verdict for the plaintiff in an action for damages to his pasture because of failure of a railroad company to erect proper cattleguards, for a less amount than the estimates given by the witnesses by several hundred dollars, will not be set aside where the evidence was confused and uncertain, and in such a shape as to render it impossible to determine accur ately how much of the damages was caused by stock going in on the right of way of the railroad, and how much was caused by stock going in at other places. Chicago, R. I. & T. R. Co. v. Yarbrough (Tex. Civ. App.) 35 S. W. 422.

And a verdict for $167 in an action for damages for personal injuries will not be set aside as inadequate where the testimony tends to