100 Tenn. 238 | Tenn. | 1898
The plaintiff below recovered a verdict and judgment in the Circuit Court of Davidson County for the sum of §51,999.99 damages for personal injuries. There had been two former verdicts in favor of the plaintiff, which were set aside by the Court. The first trial resulted in a verdict for the sum of $825, which was set aside by the Court upon the grounds recited in the minute entry, to wit: “That the jury disobeyed the instructions of the - Court, and because the verdict is against the preponderance of the evidence.” The second trial resulted in a verdict for the plaintiff for the sum of $1,300, which was set aside by the Court without assigning any reasons upon the record. The third and last trial, as already stated, resulted in a verdict for the plaintiff for the sum of $1,999.99, which the Circuit Judge declined to disturb. In
The tenth assignment of. error made on behalf of the company is that the Circuit Judge erred in overruling the motion for a new trial, for the reason that his opinion showed he was not satisfied with the verdict; that the Court expressly stated that “the present verdict utterly fails to meet my approval. I believe the weight of the testimony to be against it, and that the plaintiff was guilty of gross negligence on the occasion of his injury,” his refusal to grant a new trial being based on the fact that ‘ ‘ two new trials had previously been granted in this cause.” The Act of 1801 provides that not
It was afterwards held that if the record was silent as to the reasons upon which the first two new trials had been granted, the Court would pre sume they were granted upon the merits, and a third trial would be refused; and if such new trials were granted for other reasons (as, for error in the charge of the Court and the like), and the party obtaining them does not want to be precluded from a third, under the statute he must make the record show the reasons for the action of the Court granting them. Turner v. Ross, 1 Hum., 16; Terrell v. Elder, 2 Swan, 77. It is also well settled that this statute has no application to a case where there is no evidence to support the verdict, but that in such case, the .trial Judge may set aside a third verdict or any subsequent verdict and upon motion of same party. Railway Co. v. Mahoney, Adm'x, 5 Pick., 311; 134 U. S., 614.
With these principles in view, the precise point made on behalf of the company is that the statute
We think the precise question now presented was necessarily involved in the judgment of the Court in
Again, the Court says, after quoting from Turner v. Ross, 1 Hum., 20: £ £ It is unnecessary to make any comment upon this language. It shows clearly that the Court recognized the power of juries, under this Act, to disregard the instructions of' the Court and find contrary thereto, and when they do so more than twice in the same case, in favor of the same party, the power of the Court is exhausted.”
These authorities, we think are conclusive of the question raised upon the record. The recital in the entry that the jury had disobeyed the instructions of the Court, without specifying the ground, would simply be equivalent to saying that the jury had found against the preponderance of the evidence and contrary to the merits of the case. It would not imply that the jury had been guilty of misconduct in the sense in which this term is understood in motions for new trial, nor would it imply that the Court had set aside the verdict upon a ground different and distinct from the other recital that they had found against the preponderance of the evidence.
Other assignments of error were considered orally, .and overruled. Affirmed.