87 W. Va. 139 | W. Va. | 1920
The ultimate purpose of this writ of error is retention of the benefit of an order of the Court of Common Pleas of Kanawha -County, setting aside a verdict for the sum of $5,000.00, rendered in an action for a personal injury, brought under the Federal Employers’ Liability Act, and granting the plaintiff a new trial, on the ground of inadequacy of the verdict. On a writ of error from the circuit court of said county, that order was reversed, the verdict re-instated and a judgment rendered thereon in favor of the plaintiff. This writ of error goes to the judgment of the circuit court.
The writ of error from the circuit court was not prematurely awarded. In other words, there was jurisdiction in that court to grant a writ of error to the judgment of the court of common
A presumption in favor of the correctness of the decision of the court of common pleas would 'have sustained it in the circuit court and precluded right in that court to reverse it, if the evidence adduced on the trial in the former court had not been before the latter; for it is not pretended nor suggested that the verdict was set aside upon any ground other than inadequacy of the damages assessed, and the correctness of the verdict in that respect depended, of course, upon the evidence. To get rid of a verdict, it is necessary to show that it is wrong, and, ordinarily, that cannot be done without a test thereof by the evidence. Schwarzchild & Sulzberger Co. v. C. & O. Railway Co., 59 W. Va. 649; Wood v. King, 59 W. Va. 418; Dudley v. Barrett, 58 W. Va. 235; Coal & Coke Railway Co. v. Joyce et al., 58 W. Va. 544; McKendree v. Shelton, 51 W. Va. 516. Since the evidence in the case was before the circuit court and contstitutpd a part of the record brought up to that court by the writ of error, this legal proposition cannot be successfully invoked by the plaintiff in error. The record brought to this court contains the declaration and all of the orders entered in both of the lower courts and, in addition thereto, what may be termed a skeleton bill of exceptions, designated “Bill of exceptions No. 1,” and an order; entered in vacation of the court of common pleas, by the judge of that court, makes that bill a part of the record of the case. It is signed by the special judge who passed upon the motion for a new trial, and it sets out in full all of the instructions given and refused and'the proceedings had upon the motion to set aside the verdict, but the evidence is not set out in it at length. As to the evidence it says: “The evidence given to the jury and the proceedings had upon the trial were recorded
Though the evidence was obviously made a part, of the record it was not necessary formally to make it such, in order to bring it before the circuit court. The statute creating the Court of Common Pleas, ch. 109, Acts of 1915, dispenses with the necessity of a bill of exceptions for the purposes of review on an appeal or writ of error in the circuit court. Sec. 18 thereof provides for a hearing in that court on an appeal or writ of error, upon -the original papers and the recorded orders and decrees in lieu of a transcript, and, in those instances in which oral testi-money has been taken, upon a transcript of the evidence certified by the stenographer or other person taking the same, and expressly makes such transcript a part of the record. Its language is “a transcript thereof duly certified by the stenographer or other person taking the same shall be held and treated as a
The regular judge of the trial court having been prevented by illness from passing upon the motion for the new trial, it was acted upon by a special judge who, presumptively, did not hear the trial nor see. and hear the witnesses, nor observe their conduct and that of the jury. He must have taken the record as we have it and as the circuit court had it and acted upon it. Hence, the reason sometimes assigned for discretion in the trial court, to grant a new trial, is lacking. This unusual circumstance is emphasized in the argument submitted for the defendant in error. Under our decisions, such discretionary power of a judge presiding at a trial, is very limited. In such cases, he has none at all, unless there is legal ground for a new trial. Hodge v. Charleston Interurban Railroad Co., 79 W. Va. 174 Rosenthal v. Fox, 70 W. Va. 753; Robinson v. Kistler, 63 W. Va. 489. Observations respecting such discretion, found in the books, probably means no more than that the judge’s decision as to the sufficiency of a ground- urged for a new trial, when there is a condition calling for judgment as to the existence thereof, will not be disturbed by the appellate court. If an apparent and prejudicial error was committed in the course of a trial, there is no discretion in the court to refuse a new. trial; If, on the other hand, there is not so much as a shadow of error in the proceedings, there is no discretion to grant one. But here, as in almost everything else, a clearly debatable question as to the existence and sufficiency of such ground may arise, and in that event, it is within the jurisdiction of the trial court, and it is its duty, to pass upon it, and the appellate court ought not to disturb its ruling on that question, unless it can see that it is erroneous. Obviously, the solution of such a question sometimes depends, to some extent, upon the appearance and conduct of jurors, parties or witnesses, in the trial. It is equally apparent that a judge who did not preside at the trial was not influenced, in his disposition of the motion, by anything in the character,
The plaintiff, a railroad engineer, suffered a paralytic stroke on the night of May 22nd, 1916, while at home and in bed. On awakening^ at about one oclock, A. M., May 23rd, 1916, he found himself unable to move any portion of his left side. His physician, who reached him in a very short time afterwards, testified to this condition, and further said that the left side o£ his face was drawn slightly toward the right and that his speech was sluggish! About half an hour later, the patient was able to move his toes slightly and his motor sensation had improved a little. After treatment for several w-eeks, he went to St. Luke’s Hospital at Bichmond, Va., where he was subjected to a neurological examination by a specialist, which disclosed a definite loss of power in the left side, particularly in the left arm, an increase in the reflexes in that side, accompanied by other signs of pyramidal involvement, an abnormal blood pressure, a faint trace of albumen and a few casts in the urine and a negative result of the Wasserman blood .test.
He attributes his paralysis to an injury suffered in a collision between the engine he was running and some cars, on a yard track, in the Princeton yards of the defendant company, on May 16, 1916, which collision he claims was' occasioned by negligence of the yardmaster. His engine was drawing a freight
Shortly afterwards, a signal light at the far end of the yard gave him permission to enter, and he started in on track No. 8. After having drawn his train from the main track on to track No. 8, the head brakeman cut the cars loose from the engine, and he started on down the track towards the round-house in which he was to leave the engine. But about one hundred yards from the east end of the yard, to which he was going, he saw something on the track which he took to be cars, and, at about the same time, he heard a noise Avhich caused him to put his head out of the window. Immediately afterwards, a car struck his engine. The violent jar to which his engine was subjected 'by the collision threw his head against the side of the window with such force that he ivas knocked down on the seat and blinded until the. second jolt aroused him and restored his sight. Although suffering from pain, he got down from his engiue, and, .after the obstructing cars had been removed, took it on to the round-house. He continued his work until the evening of the 22nd and there was no disability serious enough to interfere with his work, until the night of the 22nd. The trip to Richmond was in September, 1916. No effectual relief having been obtained there, the plaintiff’s condition remained bad and a surgical operation was performed in December of that year, which gave him some relief. His skull was trephined and a portion of it, about an inch by three inches in size5 was removed. Thereafter, the pain from which he had suffered ceased, and he got rid of convulsive affections of the left leg and arm. At the date of toe trial, he was unable to do any considerable amount of manual labor. He said he ivas able to work for a short period at a time in his garden, but that his leg gave out under him and he had practically no use of his left hand. All of the expert witness regarded his affliction as being permanent.
That the collision in which plaintiff suffered injury to his head was occasioned by the negligence of the defendant acting
As to the cause of the paralysis, the expert witnesses were divided in opinion, three of them declining to say the injury to the head caused it, and the other two saying 'they thought it did. All were of the opinion that it could have been caused by high blood pressure and hardening of the arteries, both of which ailments the plaintiff is shown to have had after the accident. Whether he was so afflicted previously, does not appear. ITe had been apparently a strong, robust man, weighing over two hundred and thirty pounds, ordinarily. He had had no occasion to consult a physician and had believed himself to be in a perfectly sound .condition. Shortly after he was stricken and just after he had taken medical treatment, his blood pressure was found to be between 160 and 165. At his age, it should have been about 140 or 14-5. In September, it was found to he 180 systolic and 90 diastolic. By a stipulation tiled in the ease, it was agreed that a neurological examination made, February 6, 1917, revealed a paresis of the left ann and left leg, moderate enlargement of the heart with an accentuated aortic second and moderate arterio sclerosis or hardening of the arteries; and that urinarlysis and the lYasserman blood test each resulted negatively. For the most part, the expert witnesses were unable to say whether the high blood pressure was pre-ex-istent or was the result of the traumatic injury. They generally agreed that muscular contraction or convulsion more often char-
The evidence of contributory negligence, if any 'is very slight. The head-light on the plaintiff’s engine at the time of the collision was not in good condition. It was an oil lamp and the wide was charred at the top and so short that it could not be turned up and trimmed. The train had left Page, a point at which there was a round-house, at about seven o’clock in the morning, and the fireman lit the head-light at about 6 or 7 o’clock in the evening. The collision occurred on the yards at about 9 :30 of the same evening. A rule of the company, with ■which the plaintiff was familiar, required enginemcn to see that, during darkness, the head-light and lamp signals were in good condition and burning brightly. Another made them responsible for the proper care and safe management of the engine; proper condition of all tools and signal appliances; and exact observance of all signals and other precautions established for safety of trains and avoidance of risks. An agreement between the employees and the company, qualifying the rules, provided that, at points at which round-house forces were employed, engines, before starting on runs, should have rod-cups filled, fires cleaned, and ash pans dumped and closed, and should'be supplied with coal, water and sand; that all tools and supplies should be taken from and put on the engines; that head-lights, cab-lights and signal lamps should be cleaned and lighted; and that running boards, pilots and decks should be swept. Under this agreement, it is insisted, that the plaintiff had the right to
In the absence of disclosure in the pleadings and evidence, of a clear, firm and definite case for recovery and data for estimation of the amount thereof, very great latitude is allowed juries in the assessment of the damages. In cases of indeterminate damages, those in which the amount of the recovery cannot be measured by any definite rule, no court in any jurisdiction will set aside a verdict merely because it is either larger or smaller than the judge thinks it ought to have been. As to this5 our decisions are firm and uniform. Kennedy v. C. & O. Railway Co., 68 W. Va. 589; Price v. C. & O. Railway Co., 40 W. Va. 271; Goshorn v. Foundry Co., 65 W. Va. 250; Given v. Diamond Shoe Co., 84 W. Va. 630, 101 S. E. 153; Wilson v. Johnson, 72 W. Va. 742. To warrant the setting aside of a verdict on the ground of mere disparity between the amount thereof and what it might have been, in eases in which there is no fixed rule for determination of the amount, the difference must be so great as to make it apparent that the verdict was the result of prejudice, partiality, passion or corruption on the part of the jury., or that-they were influenced in their conclusion by some mistaken view of the case. There are comparatively few instances in which-verdicts have been set aside on the ground of excessiveness,'and, there are still fewer in which they have been disturbed on the ground of inadequacy. It seems tha*t, at common law, a verdict in an -action of trespass could not be set aside at all for inadequacy. Jackson v. Boast et al., 2 Va. Cas. 49. That defect was remedied at an ear-ly date in Virginia by statute. Revised.
In each of these cases, there was a practical denial of a clearly established right to a substantial recovery. Though the damages, being indeterminate, could not be accurately ascertained, it is apparent that the jury had arbitrarily awarded practically nothing, under circumstances justifying and calling for a. substantial amount. This was regarded and held to be proof of .improper conduct on their part in determining the amount of the verdict. It was apparent that they had acted partially and
Evidence, facts and circumstances disclosed in a case, constituting what may have been, in the minds of the jury, the basis of a doubt as to right of recovery, seems to preclude power in the court to grant a new trial, on the ground of inadequacy, even though, as attested by the record, the verdict is inconsistent and amounts to a practical denial of right as indicated by the plaintiff’s evidence. If a verdict awards only nominal damages and the state of the evidence is such that, if a verdict had been rendered for the defendant, instead of the plaintiff, the court could not have disturbed it, there is no right in the 'trial court to set it aside on the ground of inadequacy. Wavle v. Wavle, 16 N. Y. Sup. Court Rep. 125; Hubbard v. Mason City, 64 Ia. 245; Young v. Great Northern Railway Co., 80 Minn. 123; O'Malley v. Chicago City Railway Co., 33 Ill. App. 354; Lovette v. City of Chicago, 35 Ill. App. 570; Ray v. Jeffries, 86 Ky. 367; Simrall v. Morton, (Ky.) 12 S. W. 185.
On the right of recover}', dependent upon the cause of the paralysis, there is a degree of uncertainty, if not conflict in the evidence, making the case .one proper for-exclusive jury determination. From his weight and the nature of his employment, considered in the light of the expert testimony, the jury may have considered the plaintiff an apoplectic subject at the time of the paralytic-stroke. He had been a locomotive engineer for a long pe
The finding ón the question of liability was in favor of the plaintiff and it is no doubt so well founded in the evidence that neither the trial court nor this court could have disturbed ity if tire defendarnt had permitted its motion to set aside to stand. But there was a subsidiary issue in the ascertainment of the amount of the verdict. As to the amount of the recovery, the .plaintiff’s right depended in part upon the extent of his injury and the probable duration thereof. Although the medical witnesses expressed the opinion that his paralysis is permanent, the
, On the other hand, they may have arrived at the conclusion in view of his diseased condition, that his expectancy of life and •earning power were not normal. Of course, there is a presumption in favor of life and a continuation thereof, as well as of •earning power, but that presumption, in the case of a person suffering from an incurable disease, is necessarily limited. Tables ■of mortality are based upon the normal man and normal conditions. Although, according to'some decisions mortality tables are admissible in evidence in cases involving the expectancy of life of a diseased person., they do not have the same probative value as they do in those involving expectancy of life of a normal person. The diseased condition of the person whose expectancy-is in question must be considered along with them and allowed force and effect. Arkansas N. R. Co. v. Griffith, 63 Ark. 491; Smiser v. State, 15 Ind. App. 519; Camden & A. R. Co. v. Williams, 61 N. J. L. 642. “'Mortality tables do not furnish absolute or conclusive rules for the guidance of either court or jury, but are to be considered with all the circumstances in proof, and weighed accordingly.” 8 Ency. Evid. 642. In some jurisdictions, it is held that such tables are not admissible at all, 'if the person whose expectancy of life is in question is not in normal physical condition. 8 Ency. of Evid. 635,. citing Nebraska, Mississippi and Michigan cases. Upon the
If the paralytic affliction was the result of the injury received-in the collision, is permanent, and wholly destroys plaintiffs-earning power, and his physical condition had been normal at the time of the injury^ no doubt the damages awarded -by the jury would be inadequate. But the power and right of the jury to-cut down the amount that would be recoverable upon the hypothesis just stated, in view of doubt as to the cause of the affliction,, their belief as to the extent and duration of the disability and the abnormal physical condition of the plaintiff at the tune of the stroke, are put beyond question by the principles to which, reference has been made. From this conclusion, it follows that the verdict was erroneously set aside in the court of common, pleas and that the judgment of the circuit court reversing that, order and rendering judgment on the verdict must be affirmed-
Affirmed.