124 Va. 750 | Va. | 1919
Lead Opinion
delivered the opinion of the court.
The plaintiff, A. B. Taylor, a servant of the defendant company, recovered a judgment against the defendant for $8,000 damages, claimed to have been sustained by reason of negligence of the defendant company. To that judgment this writ of error was awarded.
The plaintiff was put to work loading guncotton to be transported from one point to another in the defendant’s plant. The cotton was hauled along a tramroad, above which there was a line of pipe. The plaintiff was struck and knocked down, and received the injury complained of. He claims that the place at which he was placed to work was not safe by reason of the fact that the pipe line was too low to admit his safe passage under it while standing on the, car on which the cotton was being transported, and that he had no knowledge of this fact and was not informed thereof by the defendant company. The defendant claims
The defendant recognized from the beginning that, in order to' escape liability, it was necessary for it to establish the plaintiff’s knowledge, actual or imputed, of the danger to which he would be subjected in the discharge of his duties. It was the foundation upon which rested not only the defenses of assumption of risk and contributory negligence, but also the defense that the defendant had furnished the plaintiff a reasonably safe place in which to work. This is made manifest from the petition for the writ of error. It begins, in effect, by announcing the following proposition: “As a basis for the consideration of the affirmative defenses
Of course, if the foundation falls, the superstructure must go with it. The crucial question, therefore, was and is, did the plaintiff know, or was he chargeable with knowledge of the danger to which he was subjected, and which resulted in the injury complained of.
It must be borne in mind that the company stands here as on a demurrer to the evidence interposed by it, thereby admitting the truth of all of the plaintiff’s parol evidence, and all inferences therefrom favorable to the plaintiff, which a jury might fairly draw, and as waiving all of its own evidence in conflict therewith, and all inferences from the latter, except those which necessarily flow therefrom. Viewed from this standpoint, the jury might have reasonably found, as facts, the following:
Taylor was a man 88 years old, and was first employed by the defendant as a night policeman, in July, 1915, and continued this work until sometime in September, when he was discharged for going to sleep while on duty. About October 1, 1915, he was again employed by the defendant, this time as labor foreman, and continued in this position until he was injured December 20, 1915. His duties, at first as night policeman and afterwards as labor foreman, carried him over a very largé part of the plant. He went wherever he was ordered to go, and this carried him
On some of the subjects above mentioned, there is a conflict of testimony, but under the demurrer to evidence rule, the testimony for the plaintiff must prevail.
Upon this testimony, it cannot be said as a matter of law that Taylor knew or was chargeable with knowledge of the danger to which he was exposed, and which caused his injury. It was a- question of fact to be determined by the jury under proper instruction from the court. The trial court was extremely liberal to the company in the matter of instructions. It gave every instruction requested on its behalf; in all, thirteen. These instructions covered every phase of the case, warranted by the evidence, that able and ingenious counsel could suggest, and yet the jury found for the plaintiff. W[e are unable to say that the verdict on these questions is either without evidence to support it, or that it is plainly contrary to the evidence.
There was no error in the rulings of the trial court on other questions involving the admissibility of evidence. These objections have been considered, but they are of minor importance, involving no question of general interest, and need no discussion.
In the case at bar, we can perceive no guide by which the trial court could have measured the reduction made, and, while reluctant to interfere with the wise practice of permitting trial courts to reduce verdicts to amounts deemed reasonable and proper, we feel constrained to do so when there is no standard by which such reduction can be measured and the verdict is not plainly without evidence to support it. The judgment of the trial court in favor of the plaintiff for $8,000 will be affirmed, and this court will, in addition thereto, enter a judgment in favor of the plaintiff against the defendant for the further sum of $2,000, with legal interest thereon from the 21st day of June, 1917, the date of the verdict, in accordance with the statute in relation to releases, in such cases made and provided.
Affirmed and additional judgment for amount remitted.
Dissenting Opinion
dissenting as to additional judgments
I concur without hesitation in the affirmation of the judg
By the decided weight of authority, trial judges are vested with discretionary power to require a plaintiff to remit a part of his recovery, as ascertained by the verdict of a jury, or else submit to a new trial, in personal injury cases. 39 L. R. A. (N. S.) 1075, note. The statute (Acts 1906,.p. 251), which authorizes a review of that discretion by this court, was not intended either to take away or to diminish that power. Indeed, its existence is thereby expressly recognized. A verdict, then, which has been disapproved, and which comes to this court without the sanction of the trial judge has no such sanctity as that which properly attaches to a verdict which is approved by him. While it is true that there are no scales by which to measure human suffering, and the verdicts of juries in personal injury cases are generally approved, still there is a standard, based upon the common or average judgment of mankind, which sanctions and approves large verdicts for serious injuries and smaller verdicts for slight injuries. That standard is recognized by the act limiting the recovery to $10,000 where a negligent injury results in death, and by the amounts fixed in the Virginia workmen’s compensation act (Acts 1918, p. 637), under which the maximum recovery is $4,000. It is also manifested in the verdicts which juries generally return, and which trial judges generally approve, for such injuries. In my opinion, all that the act of 1906 intended was to confer jurisdiction on this court to review the action of the trial courts where the verdict is reduced and the plaintiff accepts such reduction under protest. This court, then, should carefully weigh the evidence in such cases, bearing in mind the fact that the trial judge both saw and heard the plaintiff and his witnesses, and with the
“There is always a fair presumption that the verdict of the jury is correct, and when the judge who presides at the trial, who has heard all the evidence, witnessed all the proceedings and the manner of conducting the cause before the' jury, is satisfied with the verdict and refuses to set it aside, an appellate court which cannot have an equal opportunity for forming a just judgment ought not to interfere without the strongest reasons for doing so. ‘On the other hand/ as was said by Judge Baldwin, in Patteson v. Ford, 2 Gratt. (43 Va.) 19, 25, ‘when the judge’ (who presided at the trial) ‘is dissatisfied with the verdict and grants a new trial, some latitude must be allowed to his discretion; especially where the propriety of its exercise is affirmed by a verdict on such new trial for the party to whom it was granted.’ In setting aside the verdict, the trial court must, to some extent, pass upon the weight of the evidence before the jury; and a stronger case must be made in order to justify an appellate court in disturbing an order granting a new trial, than where it has been refused. The reason usually assigned for this rule is that the refusal to grant a new trial operates as a final adjudication of the rights of the parties, while the granting of the new trial simply invites further investigation, and affords an opportunity for showing the truth without concluding either party. Barton’s Law Pr., 725-6; Ruffner v. Hill, 31 West Va. 428, 431-2 [7 S. E. 13] ” Chapman v. Va. Real Estate Co., 96 Va. 177, 188, 31 S. E. 74, 78.
“It would, indeed, be a futile and idle thing for the law to give a court supervisory authority over the proceedings and the manner of conducting a cause before the jury, and the’ right to set aside the verdict of the jury therein because
In this case, under the evidence, I think that the trial judge properly reduced the verdict, and that it should not be increased beyond the amount approved by him, $8,000.
Affirmed and additional judgment for amount remitted. .