Action by Sara Kautman, by her next friend Donald Kautman, stems from a January 8, 1973, school bus accident which occurred when Sara and other members of the Mar-Mac seventh grade basketball team were returning home from a game.
Trial jury awarded plaintiff $25,000. Upon return of the verdict she unsuccessfully moved for a new trial unless defendants consent to additur in such amount as may be allowed by trial court. This points up the issues here raised by plaintiff, but аn affirmance as to denial of her right to a new trial obviates any need to consider additur.
I. Our review is on errors assigned. Iowa R.Civ.P. 334.
“The princiрles involved are well established and easy to state. However, their application to particular facts is more difficult. It is well settled the trial court has wide, but not unlimited, discretion in ruling on a motion for new trial. [Citations] Ordinarily the jury should be allowed to settle disputed fact questions, but that, too, is a limited power and one which must be exercised within the framework of the evidence in any particular case. [Citations] A verdict should not be set aside as either too large or too small simply because the reviewing court would have reached a different conclusion. The court always has inherent power to set aside a verdict which fails to do substantial justice between the parties. [Citations].
“To all of these we may add another rule which says precedents in this field are of little value. Each case must be decided by relating its own unique circumstances to the general principles above announced.” Moore v. Bailey,163 N.W.2d 435 , 436 (Iowa 1968).
See also
Dubuque Area Chamber of Commerce
v.
Adams,
Furthermore,
“It is not for us to invade the province of thе jury. In fact a verdict will not be set aside or altered unless it is, (1) flagrantly excessive or inadequate; or (2) so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is the result of passion, prejudice or other ulterior motive; or (4) is lacking in evidential support.” Schmitt v. Jenkins Truck Lines, Inc.,170 N.W.2d 632 , 659 (Iowa 1969).
See also
Giltner v. Stark,
Added to the foregoing is this apt observation in
Mazur
v.
Grantham,
“If the verdict has support in the evidence the others will hardly arise, if it lacks support they may all arise. The real quеstion in most cases, and here, is the amount and sufficiency of evidence to support the award made. Certainly where the verdict is within a reasonable range as indicated by the evidence the courts should not interfere with what is primarily a jury question.”
See also
Lappe v. Blocker,
We must also accord weight to the fact trial court, aided by seeing and hearing the witnesses, observing the jury and having before it all incidents of the trial, did
*148
not deem it appropriate to interfere.
Olsen v. Drahos,
II. Turning to the record, it is apparеnt all doctors agreed upon the nature and permanency of plaintiff’s injuries. There were diverse оpinions, however, as to the severity thereof. An understanding of these variances compels a comparison of relevant testimony by plaintiffs witness, Dr. Walker, with that of Dr. Phillips, a defense-called witness.
Dr. Walker, testified the intervertebral disc spaces between plaintiff’s injured vertebrae have been “pretty well destroyed”. Conversely, Dr. Phillips found these disc spaces “normal” and “well maintained”.
Similarly, Dr. Walker said traumatic arthritis аlready existed. But Dr. Phillips found no present traumatic arthritis in plaintiff’s neck or back.
Then too, Dr. Walker evaluаted plaintiff’s present functional disability at 20% of the body. He was of the belief Sara would require more extеnsive medical treatment, including surgery to fuse the cervical discs injured in the accident. This operation, whiсh Dr. Walker thought necessary in 10-15 years, would cost about $2000 at present rates. On the other hand, Dr. Phillips found no existing funсtional disability caused by injuries to plaintiff’s back. He predicted her symptoms in that area would remain abоut the same as at present and opined any outcome of the cervical area conditiоn was not foretellable.
This medical testimony was understandably extensive. We have not stated it in detail, but recite sufficient to reveal existence of serious disagreement by expert witnesses as to the extent оf plaintiff’s injuries. Thus, as in
Moore
v.
Bailey,
Also considered is the lay tеstimony. In summary it reveals plaintiff suffered some pain and discomfort after her release from the hospital but has engaged in a range of athletic activities. In fact, Sara testified she, with doctor’s approval, had participated in eighth and ninth grade basketball. Plaintiff complained, however, of lower backаche after vigorous activity and noted her headaches were more frequent since the acсident.
Although the evidence may have justified a higher award, such is not controlling. The determinative question pоsed is whether under the record, giving the jury its right to accept or reject whatever portions of the conflicting evidence it chose, the verdict effects substantial justice between the parties.
Moore
v.
Bailey,
Briefly stated, this сourt finds no adequate basis upon which to hold the verdict was tainted by passion or prejudice.
By the samе token we find no abuse of discretion on the part of trial court in overruling plaintiff’s new trial motion.
Lappe v. Blocker,
In light of the foregoing plaintiff’s request for additur is not reached. Stated otherwise, since she is not entitled to a new trial because of alleged inadequacy of the involved verdict any right to additur is concomitantly foreclosed. See opinion by Traynor, C. J., in
Jehl v. Southern Pacific Company,
AFFIRMED.