46 F. 347 | U.S. Circuit Court for the District of Washington | 1891
The first trial of this case was had in the territorial district court, resulting in a verdict in favor of the plaintiff for $1,000, which was set aside, and a new trial granted, on motion of the defendant. Upon a second trial the jury returned a verdict for $500. That verdict was also set aside by the court. Tho third trial of the case was had in this court, and resulted in a verdict in favor of the plaintiff for $1,000, and the defendant for the third time asks for a new trial. Three principal grounds are urged in the argument. The first is that the plaintiff is not entitled to recover damages in this action. The decision of that question necessitates consideration of the pleadings and the evidence, and a review of the whole case.
The action, as I construe the pleadings, is based upon a contract to recover damages resulting from personal injuries caused by a tortious breach of the contract, and it is therefore to be distinguished from numerous decisions holding that where in his complaint the plaintiff pleads only a wrongful and forcible expulsion from a passenger train, and the defendant justifies by showing the failure of the plaintiff to present, when called upon, a proper ticket, pay fare, or leave the train. In such an action the complaint is for a tort, pure and simple, and, as it is the
The next question is as to the measure of damages. The testimony in the case which went to the jury had a tendency to prove that the plaintiff was damaged, not only by reason of mental and physical suffering at the time, but for months afterwards, by reason of nervousness brought on by the ordeal through which she passed, her health was impaired, and she was partially incapacitated for doing her. usual work. There is then in the testimony, as well as in the allegations of the complaint, a showing of peculiar injuries to the plaintiff, giving her a claim to special damages by reason of the tortious manner in which- the contract was broken. The court instructed the jury, in effect, that if, according to the decision of the jury, the plaintiff should be entitled to recover, the measure of damages would be reasonable compensation for the injury actually sustained by the plaintiff, and that exemplary damages could not be awarded. There is no ground for supposing that the jury were actuated by passion or prejudice, or that they intended to disregard this instruction. Even if my opinion of the case would warrant me in regarding the sum awarded by the verdict as excessive, still, being the result of the third trial, and being the sum twice fixed upon by successive juries, I think the limit of the court’s discretionary power in granting new trials for this particular cause has been reached.
The third and last ground for the motion is alleged misconduct of the jury, in this: that the verdict was arrived at by each juror writing the amount which he was willing to fix as the amount of damages recoverable, and adding the several amounts so given, and dividing the total by 12. From affidavits on file I find the facts to be that, for the purpose of coming to an agreement, if possible, the jury did resort to the above method of addition and division of numbers, but the verdict was not arrived at in that way. There was no agreement made to abide the result. The amount of the damages awarded is much less than the
The motion for a new trial will therefore be denied.