112 P. 845 | Ariz. | 1911
Lead Opinion
Appellee was in the employ of appellant as ehainman. On April 23, 1907, he was engaged with another employee, named Byan, in measuring distances, locating mile-posts on appellant’s line of railway. For that purpose they used a three-wheeled velocipede furnished by appellant. This velocipede was of the kind ordinarily used in work of this character, with a gasoline engine for motive power. It had two wheels on the right-hand side, over which was the engine, and a seat for the use of the operator, and a
We shall consider the assignments of error in the order in which they are argued by counsel. It is first insisted that the court should have directed a verdict at the close of the plaintiff’s case, for the reason, as contended, that the testimony showed that at the time the velocipede left the track it was going north around a right-hand curve, and therefore, as stated by counsel, “would be impelled by centrifugal force toward the outer rail, and the two wheels on the right-hand side would be held against the rail on that side, and the flange on the left-hand or third wheel impelled away from the rail. The application of this natural law would result in the constant tendency on the part of the machine to keep straight ahead, and thus the flange on the left-hand side would be kept away from the rail, and its condition would have no
It is further insisted that the court erred in not directing a verdict for the defendant, for the reason that the evidence showed that the defects of the wheel were plainly observable, and the danger easily appreciated, and that therefore the plaintiff assumed the risk. It is true that the defects should have been discerned by anyone whose duty it was to inspect wheels, but Hall was not an inspector, nor did he have anything to do with the operation of the car. His only connection with it was to ride upon it from place to place, in locating mile-posts. Nor does it seem possible to say, as a matter of law, that he should have appreciated the danger had he known the condition of the wheel. He had but little experience with machines of that character. It does not appear that he had ever used any other track velocipede, and it does appear that he had been employed on the one in question but about fourteen hours at the time of the accident. One without experience in such matters might observe that the wheel was worn and yet not appreciate that it was in such condition as to be dangerous. In fact, the record in this case dis
Appellant contends that the court in its instructions erred in stating the rule of assumption of risk by an employee, in that it limited the defects, the risk of injury from which the plaintiff assumed, to those which he actually knew or those which were plainly observable to him, and insists that an employee also assumes the risk of those he might or ought to have known through ordinary care. There are authorities which support this contention, but the question is determined to the contrary by our appellate court. “Upon this question the true test is not in the exercise of care to discover dangers, but whether the defect is known or plainly observable by the employee.” Choctaw etc. R. R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96.
The refusal of the court to permit Ryan, the operator of the car, to testify to a remark' made concerning the condition of the wheel, a short time before the accident, is assigned as error. Hall, Ryan, and one Regna were in the neighborhood of the velocipede when Regna commented upon this alleged defect. Ryan was unable to state that Hall took any part in the conversation, could not state how far he was from Regna at the time, and there is nothing in the record to indicate with any reasonable certainty that he heard the remark. Therefore the testimony was properly excluded.
The remaining important question in the case is whether the court erred in rendering judgment for the amount of the verdict less the sum remitted by the appellee. It is insisted by appellant that the court should have granted a new trial for the reason that it is beyond the power of a court to permit a remittitur where the damages are unliquidated and the verdict excessive. The question has heretofore been before this court in two eases. Southern Pacific Co. v. Tomlinson, 4 Ariz. 126, 83 Pac. 710, was an action to recover damages for death by wrongful act, under a statute permitting the jury “to give such damages as they may think proportioned to the injuries resulting from said death.” A verdict for $50,000 was returned, from which the plaintiff remitted $31,998, and judg
It is argued that to permit a remittitur, or to require it as a condition of refusing a new trial, is to substitute the court’s judgment for that of a jury, to the latter of which the defendant is entitled. But it is to the jury’s judgment that defendants object when they appeal to the court for new trials on the ground of excessive verdicts. The trial court has undoubted power to determine whether the verdict is or is not excessive, and in considering the question usually determines in its own mind the maximum amount for which a verdict could with propriety be permitted to stand. Where there has been no error of law committed which would require a retrial, and it appears that the excessive verdict has resulted from too liberal views as to the damages sustained, rather than from prejudice or passion, to permit a remission of the excess. instead of putting the parties to the expense of a new trial, promotes justice and puts an end to the litigation. Of course, if it appears that the verdict is tainted' by prejudice or passion, and does not represent the dispassionate judgment of the jury upon the question of the right of the plaintiff to recover, a new trial should be granted. But we think that the trial court is in a better position to determine whether the verdict is so tainted than is this court, and that unless it clearly appears from the record that the excessive verdict resulted from prejudice or passion, rather than from that liberality which jurors sometimes exercise in cases which appeal to men’s sympathies, we should accept the trial court’s determination. The trial court in this case has determined that the jury was not influenced by passion or prejudice, and we see no reason for not accepting its conclusion.
Other rulings of the court are assigned as error and have received our consideration, but they are not of sufficient importance to warrant discussion here. We find no reversible
KENT, C. J., and LEWIS and DOE, JJ., concur.
Concurrence Opinion
Specially Concurring. — I concur in the result arrived at in this case, but not in the analyses given of the opinion of this court in the Pitchett case. This court held in the Tomlinson case that a trial court has the power to make a remission of excessive damages a condition precedent to denying a new trial, but said: “If it is apparent to the trial court that the verdict was the result of passion or prejudice, a remittitur should not be allowed, but the verdict should be set aside. . . . When the circumstances as they may appear to the trial court indicate that the jury deliberately disregarded the instruction of the cqurt, or the facts of the case, a remittitur should not be 'allowed, but a new trial should be granted. If-they do not so indicate, and the plaintiff voluntarily remits so much of the damages as. may appear to be excessive, the court, in its discretion, may allow the remission and enter judgment accordingly.” In the Pitchett case, this court held that it was apparent that the jury was influenced by passion or prejudice, and that, therefore, a new trial should have been granted.
The trial court in the case now under consideration has determined that the jury was not influenced by passion or prejudice; the record discloses no reason for refusing to accept its conclusion; the affirmance of the judgment of the lower court is, therefore, in perfect harmony with the former rulings of this court in both the Tomlinson and Pitchett cases.