294 Mass. 372 | Mass. | 1936
These two actions of tort, which were tried together, arose out of a collision between an automobile owned and operated by the plaintiff Murnane and an automobile owned and operated by the defendant. The action by the plaintiff Murnane was brought to recover compensation for personal injuries sustained by him and for damage to his automobile. The other action was brought by
No exception lies to the denial of any such motion unless it is shown that there was an abuse of discretion or an error of law on a question arising for the first time on such motion. Cerrato v. Miller, 264 Mass. 533, and cases cited. See also Moskow v. Burke, 266 Mass. 286, 290.
There was no such error of law. The verdict for the plaintiff in each case for damages in the amount of $1 was not as matter of law inconsistent with the finding for the plaintiff which such verdict imports. The nature of the accident did not as matter of law require a finding that the damages caused thereby were greater than the damages found. There was no evidence of the extent of the personal injuries sustained by the plaintiffs or of the damage to the plaintiff Murnane’s automobile which the jury were required to believe, even if it was uncontradicted. And as to the extent of such personal injuries there was some conflict in the evidence. The finding of liability did not establish the complete trustworthiness of the witnesses or the accuracy of their testimony with respect to the personal injuries and property damage caused by the accident. The jury could have believed the testimony to the way in which the accident occurred without accepting as true the testimony, even of the same witnesses, to the extent of the plaintiffs’ injuries and the property damage, and could have concluded that
The matter of setting aside the verdicts and granting either complete new trials or new trials on the issues of damages only, therefore, was within the discretion of the trial judge. And nothing in the record shows that he failed, either in the manner of reaching his conclusion or in the conclusion itself, to exercise sound judicial discretion in dealing with the plaintiffs' motions. Where, as here, there is no error of law on a question arising for the first time on a motion to set aside a verdict in whole or in part, a trial judge ought not to grant the motion “unless on a survey of the whole case it appears to the judicial conscience and judgment that otherwise a miscarriage of justice will result." And the decision of the trial judge on such a motion cannot be reversed on exceptions unless it appears that he failed to exercise “discriminating judgment within the bounds of reason." Davis v. Boston Elevated Railway, 235 Mass. 482, 496-497. The record falls far short of showing such a failure. There was no admitted fact necessarily inconsistent with the verdicts rendered. See Simmons v. Fish, 210 Mass. 563, 571-572. Nor, on the record before us, can the distrust apparently felt by the jury concerning the evidence of damages be pronounced so irrational that it was not “within the bounds of reason” for the trial judge to permit the verdicts to stand. The “degree of credibility to be attached to the statements of anybody cannot be ruled as matter of law.” See Davis v. Boston Elevated Railway, 235 Mass. 482, 501-502. Indeed the trial judge well may have thought
Exceptions overruled.
