| N.J. | Nov 8, 1917
The opinion of the court was delivered by
This was an action brought under the Death act to recover the pecuniary loss sustained by the next of kin of George H. Briggs, deceased, who, as the plaintiff alleged, came'to his death through the negligence of the defendant company.
The proofs showed that the decedent fell from the running-boar.d of one of the defendant company’s cars on Ocean avenue, Jersey City, and the plaintiff’s claim was (and there was evidence to support it) that the accident happened by reason of a severe lurch, or jerk, which occurred while the car was entering upon or going around a curve.
This is the third trial of the case. The first resulted in a verdict for the plaintiff for $4,000/ which was set aside by this court upon two grounds — first, that the preponderance of the testimony was in favor of the conclusion that the accident happened because the decedent undertook to leave the car while it was still in motion; second, because the verdict was excessive. The second verdict was also in favor of the plaintiff, and the award of the jury was $2,000. This verdict was also set aside by this court upon the ground that the preponderance of the testimony was in favor of the conclusion that no unusual jerk occurred which produced the accident. The third verdict, as we have -already said, was also in favor of the plaintiff and (he jury awarded him $5,000.
We are now asked to order a fourth trial upon the following grounds: Because of error in the charge to the jury; because of the improper admission of testimony; because the finding of the jury that there was negligence in the operation of the car, and that there was no negligence on the part of the
It is enough to say, in disposing of the first ground, that no exception or objectioh was taken to the instruction to the jury now complained of. Moreover, it was a mere comment on evidence, and not the laying clown of any legal principle for the guidance of the jury.
The matter claimed to have been improperly admitted in evidence was one of common knowledge, and, consequently, even if the question which called it forth was theoretically improper. the answer could not have been legally injurious, to the defendant.
The question of the negligence of the defendant company, and also that of the contributory negligence of the decedent, were both for the determination of the jury, and not of the court; and there must come a time when the findings of the jury upon these matters are to be accepted by the court, notwithstanding its own view that such findings are contrary to the great preponderance of the evidence. We think that a lliird verdict should be accepted as conclusive of these matters, unless some good reason appears in a given case for holding the contrary view; and a difference of opinion between the jury and the judges as to where the preponderance of the evidence is, affords no such reason.
But this principle has no application, in cases like that now before us, when the question of the alleged excessiveness, of the verdict rendered at the third trial is under consideration; for there has been no concurrence of view hv the several juries that have passed upon the matter -as to what would be fair compensation for the loss sustained by the plaintiff, hut, on the contrary, a wide divergence of opinion, and, consequently, the third award receives no support from those which have preceded it. The matter, therefore, must be dealt with as one of first instance. Tn the present case, the decedent was earning $30 a month at the time of his death. It is said that he was likely to have had his wages raised to $63.50 per month in a short time. Accepting this as a fact, the total amount that he would have earned at the higher rate between the time
If the plaintiff will consent to Reduce the verdict to $2,500, lie may enter judgment for that amount, otherwise the rule to show cause will be made absolute.