This action was instituted to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant’s trains. Shortly after the train in question left Maple Valley, on its return trip to thе city of Seattle on the 7th day of July, 1907, one of the
The only assignments of error we deem it necessary to consider or discuss are: first, that the court erred in denying a motion for judgment notwithstanding the verdict, because there was no evidence of negligence on the part of the appellant; and second, thаt the court erred in denying a motion for a new trial because excessive damages were allоwed. The law presumes that accidents such as the one complained of are attributable tо the negligence of the carrier, and the burden of proof is on the carrier to rebut this presumption. And while the testimony on the part of the appellant tended to show that its roadbed was in good cоndition, its cars and equipment properly inspected and its train carefully operated, there wаs other testimony tending to show that the train was operated at a high rate of speed, and that the rоadbed was rough and uneven. It cannot be said, therefore, as a matter of law, that the appеllant exercised that high degree of care which the law
The actual physical injuries suffered by the respondent were slight, and for a considerable time after the accident he himself considered them so. They consisted of a grazed shin, a bruise on the knee, and a bruise on the hip. He was never in a hospital or confined to his bed, and no serious consequencеs have developed from these particular injuries. He claims, however, that about three weeks after the accident he was taken with a pain in his side, and this pain seizes him whenever he attempts tо raise his arm above his shoulder, and that by reason thereof he is unable to follow his customary calling, thаt of a painter and decorator. Five surgeons in all testified at the trial, two for the respondent and three for the appellant, but their testimony was substantially the same. They all agreed that there were no objective symptoms, and that they were compelled to rely entirely upon the statements of the respondent as to the existence, nature, and extent of the pains and injuries from which he was suffеring. If the pains exist as claimed, their cause is problematic. D¡f. Carroll, for the respondent, who pеrformed an operation on him some three years before, testified that the pains might result from the previous operation, from a cold, or from'other causes, and would go no farther than to say that the pains might also result from a fall. No witness was questioned or testified as to the probable duration оf the pains or disability, if they in fact existed, and there was no testimony that would warrant the jury in finding that the injuries were рermanent. Under these circumstances, we have no hesitation in saying that the verdict returned by the jury is grossly еxcessive. If the injuries suffered by the respondent are more serious and more lasting than the record bеfore us would indicate, the respondent is under no obligation to submit to the reduction which this court is comрelled to make, but may call for a new trial. It seems to us that
The judgment of the court below is therefore reversed; and if the respondent elects to accept- $1,000, and сosts in the court below, within ten days after the remittitur is filed there, á new judgment will be entered for that amount; otherwise, a new trial is granted. The appellant will recover its costs in this court.'
Crow, Dunbar, Mount, Fullerton, Gose, and Chadwick, JJ., concur.