Patten v. Chicago & Northwestern Railway Co.

36 Wis. 413 | Wis. | 1874

Cole, J.

The questions touching the liability of the company for the injury sustained by the plaintiff were deliberately considered when the case was before us on a former appeal (32 Wis., 524); and as the proof on the last trial in regard to the defendant’s negligence was not essentially different from that introduced on tbe previous one, we do not feel called upon to reexamine questions already decided in tbe cause. We thought on the former appeal, and so stated in the opinion, that the failure of the company to light its depot building, especially as it was situated off from the public highway, or not having some agent at the station to aid passengers leaving the train at night, were-acts from which negligence might be inferred. And we then decided that the question was fairly submitted to the jury upon all the facts and circumstances, to determine whether the company was guilty of negligence in those matters, and, if so, whether the negligence was the proximate and direct cause of the accident, so as to render the defendant liable. These questions, therefore, affecting the liability of the company, having been decided, are res adjudicates, and are no longer open for discussion. So much is said in answer to the suggestion of defendant’s counsel that they ought to be further considered and examined.

The former judgment was reversed, and the cause sent back for a new trial, for the sole reason that we considered the verdict excessive. That it is not only within the power of this court, but that it is an imperative duty, to set aside verdicts on that ground and for such a reason, is a proposition from which none will dissent. There may be a difference of opinion as to whether a verdict in a given case is excessive, but there can be none as to the duty of the court to interfere when it is excessive.

It was stated in the former opinion that there was no evidence in regard to the nature and extent of the injury sustained by the plaintiff, which warranted the jury in awarding the amount of damages given on the other trial. The verdict was for $2,538, and was, we thought, out of proportion to the damages proven. The opinion further proceeds to state that unless the proof should be different on another trial, anything above $1,200 would in our judgment be excessive. On the last trial the amount of damages awarded by the jury was $1,500.

It is now claimed and insisted by the counsel for the company, that as substantially the same proof was made by the plaintiff in regard to her injury as at the former trial, the present verdict is excessive, and should, under the intimation before given, be set aside. In answer to this position we may say, that the testimony as to the extent and character of the injury is somewhat different from that in the former bill of exceptions. The plaintiff testified to an injury to her spine resulting from the fall, which, if she mentioned it before, did not appear in the evidence. There are some other items of testimony given on the last trial, which tend to aggravate the seriousness of the injury, but we shall not dwell upon them. It is sufficient to say that it was not our intention, by the intimation above alluded to, to fix the maximum sum which the jury should not exceed in their verdict, but only to state an amount which, upon the facts as they then appeared, would seem to be full compensation for the injury. In order to say the verdict was excessive, it was necessary, of course, to form some idea as to what would be a proper amount, and to give some indication of our view for the guidance of the jury. From the argument of the-counsel for the defendant, and also from some remarks contained in the charge of the court, we think our meaning was not fully apprehended, and that it was supposed we intended to assume the province of the jury and assess the damages. Such was not the object of the opinion. The statement that $1,200 appeared on the evidence to be full compensation, was merely designed to afford some guide to the jury as to what we deemed a reasonable and just verdict. Without some such intimation, it is manifest that the court below, as well as the jury, would be in the dark as to our views upon the subject.

We cannot say that the verdict is excessive as it now stands; and, therefore, for the most obvious reasons, the judgment must be affirmed.

By the Court. —It is so ordered.