191 N.W. 776 | N.D. | 1922
This is an appeal from a judgment in favor of the plaintiff for $10,000 and costs, in an action for personal injuries. The judgment was entered pursuant to a special verdict at a second trial of the action. At the first trial, the plaintiff had judgment for $4,559.50, and an appeal was taken to this court, where the judgment was reversed and a new trial granted (Daniels v. Payne, 48 N. D. 60, 182 N. W. 1010).
It is unnecessary to again state the facts in detail, as reference may be had for this purpose to the decision on the former appeal. The principal contention upon this appeal is that the verdict is excessive. This question was presented to the trial court by a motion for judgment non obstante, or, in the alternative, for a new trial, which motion was
In support of tbe argument that tbe verdict is excessive, the appellant urges that tbe evidence as to tbe plaintiff’s injuries is no stronger now then formerly. It is pointed out that tbe only treatment received by tbe plaintiff, aside from that given in tbe hospital in Brainerd, Minnesota, by Dr. DeRauf, in April, 1919, was eight treatments from an osteopathic doctor named Allen; that while tbe plaintiff bad been examined by another competent physician, Dr. LaRose, the latter was not called to testify; and that Dr. DeRauf testified that tbe plaintiff was not, in his opinion, permanently injured. On tbe question of bis injuries, the plaintiff testified in substance as follows: That be was forty-seven years of age ; that be was knocked unconscious when he was struck by tbe defendant’s speeder, and when be regained consciousness be felt severe pain in bis back, hip and leg; that be could not work; that be bad received a long gash in bis chin, which was sewed up; that bis bead was badly bruised; that there are nights that be cannot sleep on account of bis bead; that two of bis front teeth were knocked out and two broken-off, which damage bad been repaired by a dentist; that be had suffered lots of pain; that he still suffers pain in his back and is unable to work at hard labor, and still has pain in his bead and dizziness; that be suffers from pain and nervousness to tbe extent that his sleep is disturbed; that he was strong and in good health before he was injured and never bothered with nervousness; that his kidneys give him trouble; that his knee is still somewhat stiff; and that since his injury he has not been able to do a man’s work, or to earn pay accordingly. Dr. Allen testified that the plaintiff first consulted him on June 16th, 1919; that the lower.part of tbe spine, in tbe lumbar region, showed signs of strain and tenderness; that he complained óf a great deal of pain in tbe right knee and in the back; that he was weak; that the spine was badly twisted, the muscles somewhat swollen, and strained and sore; that
In the light of this evidence, considered, in view of the fact that approximately two years and a half had elapsed between the injury and the date of this trial, and the further fact that the trial court has held that the verdict is not excessive, can this court say that this verdict is so excessive as to indicate passion or prejudice, or that there is no substantial evidence to support it ? It is elementary that in actions for personal injuries there is no precise rule for the measurement of damages, and that of necessity their assessment is left largely to the good sense of the jury. 13 Cyc. 136. And that the jury is required to take into consideration, among other things, the character of the injury, the degree of physical impairment resulting, the pain suffered, and all damages which the evidence shows had resulted, or will result, from the injury. 13 Cyc. 137; 8 R. C. 544. The operation of this rule, says Corpus Juris, “is not affected by the fact that, in the opinion of the reviewing court, the amount awarded by the jury is larger or smaller than it should have been, where there was evidence to sustain the verdict, and nothing to induce the belief that the jury was actuated by prejudice, partiality, or corruption.” 4 C. J. 870. The previous verdict, and the lapse of time between the injury and the second verdict, are matters, that must be taken into consideration by an appellate tribunal in determining whether or not a particular verdict should be set aside on the
We are of the opinion that there is no merit in the contention that the plaintiff was walking upon the railroad track, in violation of the rules of the company. In view of what was said on the former appeal we deem it unnecessary to discuss the remaining contentions with respect to negligence, contributory negligence, and the special verdict. The judgment appealed from is affirmed.
