64 Minn. 220 | Minn. | 1896
On March 20, 1895, the plaintiff was injured by a defect in a sidewalk of the defendant, and this action was brought to recover damages for such injury. He recovered $3,000, and the defendant appeals from an order denying its motion for a new trial.
1. The first assignment of error is that the trial court erred in admitting evidence as to the probable cost of medical treatment of the plaintiff subsequent to the trial. Evidence was offered, on behalf of the plaintiff, tending to show that there was a withering or atrophy of the muscles of his left shoulder joint, particularly the deltoid, as a result of his injuries. A witness, who was called as a medical expert, and gave evidence as to the nature and extent of plaintiff’s injuries, was asked this question: “Q. Now, what would be the only course of treatment that would be likely to be of any benefit in that condition?” This was objected to as incompetent, irrelevant and immaterial by the defendant; objection overruled, and exception. The question was then repeated, and answered as follows: “Q. What treatment would be necessary, and the only treatment, in fact, by which these parts could be restored, in your judgment? A. Electricity and massage materially assist nature and hasten repair.” Conceding that the purpose of the question was to show the probable cost of future medical treatment, we are not called on to decide whether such evidence was admissible; for it is manifest that the answer was not responsive to the question, and was so indefinitely neutral as to be absolutely harmless. The first assignment of error is not regardable.
2. “That the court erred in holding that the damages awarded were not excessive,” is the second alleged error. The simple fact that the damages in an action in tort are, in the judgment of the court, excessive, is not a ground for a new trial. It must further appear that they were given under the influence of passion or prejudice. Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149. Hence, if the court was in error in holding that the damages were not excessive, the defendant would not be entitled to a new trial for this reason alone. 'But, assuming that the assignment, liberally interpreted, is to the effect that the court erred in denying defendant’s motion for a new trial because the damages are excessive, and were given under the influence of passion or preju
3. The last alleged error is that the court erred in not granting a new trial on the ground of newly-discovered evidence. The general nature of the alleged newly-discovered evidence is that two persons make affidavit that they saw the plaintiff move a piano since he was injured, and that he had no difficulty in using his left arm or in lifting the piano. The counter affidavits of the plaintiff and his attorney render it probable that the parties making the affidavits as to the plaintiff’s moving the piano were mistaken
Order affirmed.