59 P. 646 | Kan. | 1900
The opinion of the court was delivered by
Isaac Plunkett brought this action against David Atchison to recover for personal injuries. It appears that Atchison had an ice-house adjoining a public street of the city of Leavenworth, and attached to it and extending somewhat over the street was an appliance for lowering ice to the wagons, on which was suspended stones as a balance or brake to the appliance. One of these fell and struck Plunkett
A review of the testimony leads us to the conclusion that the amount awarded was greatly in excess of a just allowance, and the remission of so large a sum by the plaintiff below is practically an acknowledgment of this fact. The verdict was attacked upon that ground, and after the reasons had been stated before the court and were under consideration by it, and manifestly to avoid a ruling setting aside the verdict, the plaintiff remitted one-half of the award, and thus the claim that it was grossly excessive and inconsiderately given was confessed. What intimation the court may have given is not stated in the record, but it is fairly inferable that so large a part of the award would not have been surrendered unless the court had in some way indicated its opinion of the verdict. A remission by the plaintiff did not necessarily show that the verdict was excessive or did not meet the approval
The error appearing to permeate the entire verdict, and there being no method to determine the excess, no other course is open than to set aside the verdict and grant a new trial. The judgments of the court of appeals and of the district court will be reversed, and the cause remanded for a new trial.