276 P. 819 | Kan. | 1929
The opinion of the court was delivered by
The appellants in this case seek to have the verdict and judgment rendered in their favor for one dollar set aside and a new trial granted. The trial court overruled their motion to that effect, and they allege error.
The action was for $145 damages to their automobile, which they allege they sustained by reason of the negligence of the defendant driving his truck against their automobile. Defendant filed a general denial and a cross petition, alleging negligence on the part of the plaintiffs which injured his truck to the extent of $26.75. The
“In a proper case the reviewing court may set aside a verdict on the ground that the amount awarded is inadequate, and this it may do, even though the trial court refused to set aside the verdict. Thus it has been held that the verdict may be set aside if the finding is for such an inadequate amount as to indicate that the jury must have been influenced by passion, prejudice . . . where the verdict is so small as to be clearly against the weight of the evidence.” (4 C. J. 875.)
“In an action by a wife for damages for the alienation of her husband’s affections, where there is evidence which tends to show that as a consequence she suffered great mental anguish and agony, a verdict for the plaintiff for SI is so small and inadequate as to show that the jury was influenced by passion or prejudice.” (Bracken v. Champlin, 114 Kan. 882, syl. ¶ 1, 220 Pac. 1038.)
“While the jury are the exclusive judges of the credibility of the witnesses, they are not authorized arbitrarily or from partiality or caprice to disregard uncontradicted and unimpeached testimony or facts shown beyond question both by testimony and by admission.” (Sundgren v. Stevens, 86 Kan. 154, syl. ¶ 2, 119 Pac. 322.)
It was held in the case of Thompson v. Burtis, 65 Kan. 674, 70
“In an action to recover the value of personal services it was not disputed that services of substantial value were rendered, but it was claimed by the defendant that they were to be gratuitous. On this issue the evidence was conflicting, and the jury returned a verdict for the plaintiff, assessing his damages at SI. Held, that the verdict is inconsistent, and that it should have been set aside on the plaintiff’s motion, based upon the ground that the recovery was too small.” (Miller v. Miller, 81 Kan. 397, syl., 105 Pac. 544. See, also, Jackson v. Humboldt, 84 Kan. 445, 113 Pac. 1047; Discount Co. v. Bank, 101 Kan. 253, 166 Pac. 476; Russell v. Newman, 116 Kan. 268, 226 Pac. 752.)
The verdict is not only inconsistent with and not sustained by the undisputed evidence in this case, but it is also so inadequate as compared with the only evidence on the subject as to clearly show that the jury must have been influenced by passion or prejudice, and should therefore be set aside.
The judgment is reversed and the cause is remanded for a new trial.