215 P. 887 | Or. | 1923
Plaintiff had verdict and judgment for one dollar in the court below. He filed an alternative motion moving said court (1) for judgment notwithstanding the verdict, and failing that relief, (2) that said judgment be set aside and for a new trial. He
Plaintiff owns and conducts a wood and coal yard at 429 Hawthorne Avenue in the City of Portland. The defendant operates a double track street-car line over said street in front of plaintiff’s premises. Plaintiff alleges in his complaint that in order for him to conduct his business it is necessary, on entering and leaving said yard with his truck, “to run said truck directly across said Hawthorne Avenue in front of the entrance of said premises and then back said truck from Hawthorne Avenue into said premises,” and that “in operating said truck it had to be and was the custom to operate said truck across both street-car tracks and then stop said truck, reverse the standard gear shift and then back said truck into said premises, all of which defendant and defendant’s said agents and employees had actual knowledge of and knew prior to the date of injuries hereinafter alleged.”
The complaint also alleges that at the time of the injury complained of the defendant company was negligent in failing to keep a proper lookout and in not seeing plaintiff’s truck upon the track; in operating its car at an excessive and dangerous rate of speed, namely, twenty miles per hour, and in failing to take any precaution to prevent its car from coming into collision with the truck, although thé truck could have been seen for a distance of approximately 360 feet from the place where the collision occurred.
The complaint prays for damages in the sum of $832.52,' made up of the following items; $502.52
.By its answer the defendant denied negligence upon its part and affirmatively alleg’ed negligence of the plaintiff in moving the truck without stopping, looking or listening, immediately in front of and in such close proximity to the moving car that it was impossible for the defendant to stop its car before coming into collision with the truck.
At common law a motion for judgment non obstante veredicto was one which only the plaintiff could make: 1 Smith’s Actions at Law, 161. The motion always had to be grounded upon something apparent on the face of the pleadings and could only be sustained when it appeared from the record that the allegations of the plea constituted no defense or bar to the action. “Where a plea confesses the action and does not sufficiently avoid it, judgment shall be given upon the confession without regard to a verdict for the defendant, which is called a judgment non obstante veredicto.” 1 Chitty on Pleadings, 688; 2 Tidd’s Practice, 920; 1 Smith’s Actions at Law, 161. “It is given when, upon an examination of the whole pleadings, it appears to the court that the defendant has admitted himself to be in the wrong and has taken issue on some point which, though decided in his favor by the jury, still does not at all better his case.”- 1 Smith’s Actions at Law, 161.
A judgment non obstante veredicto is always upon the merits and is never granted but in a very clear case: 1 Chitty on Pleadings, 688; Tidd’s Practice, 922.
By Section 202, Or. L., a motion for judgment notwithstanding the verdict can now be made either
The cause of action alleged by the plaintiff in his complaint is a demand for damages resulting from the alleged negligence of the defendant in running one of its cars into collision with his truck. The answer denied negligence on the part of the defendant and alleged that the damages complained of resulted from the negligence of the plaintiff in driving his truck, without stopping, looking or listening, upon the track of the defendant, immediately in front of one of its moving cars and in such close proximity to said car that it was impossible for the defendant company to stop its car before running into plaintiff’s truck. The answer pleaded a good and sufficient
Indeed, the very common-law definition of a judgment non obstante veredicto precludes the concept that a plaintiff, who has recovered a verdict, can be granted the remedy of a judgment non obstante veredicto. The same is true under the statute. Both by the rules of the common law and by statute, the judgment that a plaintiff is entitled to upon a verdict in his favor, is a judgment on the verdict and not a judgment for a greater or different amount than that found to be due the plaintiff by the verdict. Hence, neither under the rules of the common law nor by statute, as the plaintiff, and not the defendant, had verdict and judgment in the court below, could the plaintiff in this action become entitled to a judgment non obstante veredicto, and therefore plaintiff’s motion for a judgment notwithstanding the verdict is without merit.
Plaintiff bases his motion for a new trial upon three grounds specified therein, which, in substance, are: misconduct of the jury in limiting the amount of damages awarded to one dollar; a total want of evidence to justify a verdict for that amount only,' and that the verdict is against law. As heretofore stated, no objection was made or exception taken to any ruling of the court upon the trial or to any instruction given or refused by the court, and no objection of that kind is made at this time. The only objection urged here is the ruling of the court upon the motion itself. Plaintiff’s sole contention in this behalf is that the evidence adduced upon the trial
There would be force in this contention if the liability of the defendant for the damages sustained by the plaintiff had been admitted, and if the measure of damage was a liquidated amount. The plaintiff, in such a case, would be entitled to a new trial because a verdict for one dollar, unless set aside, would defeat the ends of justice. In this case defendant’s liability was denied and the evidence offered at the trial was sufficient to warrant the jury in returning a verdict in defendant’s favor. Before the jury could rightfully find a verdict for the plaintiff it was necessary for it to find that the defendant was liable, and unless it found the defendant liable, it had no right to return a verdict against the defendant. It does not follow that because the plaintiff obtained a verdict for one dollar while suffering damages in a sum greater than one dollar that the verdict was equivalent to a finding by the jury that the defendant was
A verdict is the result of a trial by a jury of issues of fact presented by the pleadings. While it is proper for jurors to harmonize their views and reach a verdict with proper regard for each other’s opinions, it is not proper for any juror to surrender his conscientious convictions upon any material issue in return for a relinquishment by others of their like settled opinions upon another issue, producing a result which does not command the approval of the whole panel: Simmons v. Fish, 210 Mass. 563, 571 (97 N. E. 102, Ann. Cas. 1912D, 588).
The fact that the jury returned a verdict for the plaintiff in the sum of one dollar only, knowing that he sustained damages far in excess of that sum, shows that the verdict was a compromise verdict evidently entered into in order to tax the costs of the action upon the defendant company, while giving to the defendant a verdict for everything except costs and subjects this verdict to the criticism made by Cooley, J., of a like verdict in Goodsell v. Seeley, 46 Mich. 623, 628 (10 N. W. 44, 41 Am. Rep. 183), where he said:
“It is no doubt true that juries often compromise in the way here suggested, and that by ‘splitting differences,’ they sometimes return verdicts with which the judgment of no one of them is satisfied. But this is an abuse. The law contemplates that they shall, by their discussions, harmonize their views if possible, but not that they shall compromise, divide and yield for the mere purpose of an agreement. The sentiment or notion which permits this tends to bring jury trial into discredit and to convert it into a lottery. It was no doubt very desirable to the public and to the parties that the jurors should agree if they could do so without sacrificing*681 what any one of them believed were the just rights of the parties; but not otherwise.”
This verdict, however, was virtually a verdict for the defendant. By it the plaintiff was given one dollar more than he was entitled to. But as he was not injured thereby, he cannot complain. He is not entitled to have this verdict set aside and a new trial granted unless, under the same evidence, he would have been entitled to have the verdict set aside if the jury had found a verdict in favor of the defendant.
In Haven v. Missouri Ry. Co., 155 Mo. 216 (55 S. W. 1035), where a verdict in favor of the plaintiff for one cent was returned, the court held:
“The plaintiff however is not entitled as a matter of law reviewable by this court, to have the verdict set aside unless her case is such that if the verdict had been for the defendant, she would have been entitled to have the verdict set aside. In other words, where a jury has returned a verdict for nominal damages in a case where the plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate court at the instance of the plaintiff.”
In Young v. Great Northern Ry. Co., 80 Minn. 123 (83 N. E. 32), the plaintiff appealed from an order refusing to grant plaintiff’s motion for a new trial upon the ground that the damages, as found by the verdict, were inadequate and insufficient, and it was held that:
“If the court below was of the opinion — and it might well have been of such opinion — that plaintiff was not entitled to any verdict under the evidence, the ruling was correct.”
In Fulmele v. Forrest, 4 Boyce (Del.), 155 (86 Atl. 733), an action to recover damages for the death of plaintiff’s intestate, on account of the alleged negli
“If, npon a careful consideration of all of the evidence, it does not appear that the plaintiff is entitled to have a recovery for substantial damages, as we think the jury in this case may very reasonably have found under all the facts adduced, the court should not set the verdict aside, but rather treat an award of nominal damages for the. plaintiff in the nature of a verdict for the defendant.”
In Vanek v. Chicago Great Western Ry. Co., 252 Fed. 871, where the plaintiff, as administrator, sued the defendant company for its alleged negligence in causing the death of plaintiff’s intestate and the destruction of his automobile, the jury found a verdict for the plaintiff in the sum of one dollar, and on plaintiff’s motion for a new trial, solely on the ground of the inadequacy of the verdict, the court denied the motion, and, among other things, said:
“If the verdict in this case had been for the defendant, that finding would have had ample support in the testimony npon the ground that the deceased was guilty of - contributory negligence; and it is quite obvious that the verdict of one dollar was to carry the costs against the defendant and so long’ as it does not complain, the verdict should not be set aside at the instance of the plaintiff.”
In Hubbard v. Town of Mason City, 64 Iowa, 245 (20 N. W. 172), which was an action for personal injuries suffered by the plaintiff by falling upon an alleged defective sidewalk, where a verdict of one dollar, in favor of plaintiff, was returned, it was held:
“Now, if the court below was of the opinion — and it might well have been of such opinion — that the plaintiff was not entitled to any verdict under the evidence,*683 the ruling was correct. The case is entirely different from an action for a liquidated sum of money, where a party is either entited to a verdict for a definite amount or not entitled to anything. It is very evident that the jury in this case did not believe that plaintiff was entitled to damages. If they did so believe, they would have given more than a nominal sum. The verdict is clearly equivalent to a finding that he was not entitled to recover, and such finding is supported by the evidence.”
In Rubinson v. Des Moines City Ry. Co., 191 Iowa, 692 (182 N. W. 865), another case where a verdict in favor of plaintiff for one dollar was returned, that court said:
“There are numerous cases holding that where the verdict for plaintiff is equivalent to a finding that plaintiff was not entitled to recover, and such finding is supported by the evidence, a new trial should not be granted on the ground of inadequacy of damages. We think the instant case falls within this class.”
In Olek v. Fern Rock Woolen Mills, 180 Fed. 117, a personal injury action, the jury returned a verdict of $250 in favor of the plaintiff. The plaintiff moved for a new trial on the ground that the verdict was inadequate. The court said:
“We think the authorities uniformly support the proposition that where the court is of the opinion that the verdict should have been for the defendant upon evidence which would have justified such a verdict, and especially, as in this case, where the preponderance of the evidence was in favor of the defendant, a court should not set aside a verdict simply upon the ground of inadequacy. Reading v. Texas Pacific Ry. Co. (C. C.), 4 Fed. 134, 2 Sedg. on Damages, 656.”
The evidence in the instant case was such that the jury could reasonably and properly have re
Upon the argument plaintiff insisted that he was entitled to have this court exercise the constitutional power conferred upon it by Article VII, Section 3, by entering a judgment in his favor for the quantum of damages that the undisputed and uncontradicted evidence shows he sustained. The same reasons which impel the court to deny plaintiff’s motion for a new trial are controlling upon the court in respect to the latter motion. By its answer the defendant denied that the plaintiff had sustained any damage. It also denied any negligence upon its part and any liability to the plaintiff, and alleged that the plaintiff’s own negligence brought about the injury complained of. In its proof the defendant offered no evidence in any way contradicting or disputing plaintiff’s testimony as to the extent of the damage sustained, but confined its testimony to disproving negligence upon its part and in attempting to establish the contributory negligence of the plaintiff. There were three issues presented by the pleadings upon which the jury had to pass in order
“As shown by the evidence, there was no contest as to the extent of plaintiff’s injuries; hence the real subject of the trial was the question of defendant’s alleged negligence, as to which there was*686 no justifiable verdict. Nevertheless the verdict rendered against defendant was so insignificant in amount that, had it moved for a new trial, no action by any court, other than a denial of such motion, is conceivable. Hence, it would work a grave injustice upon defendant to force it to a new trial of the issue as to damages only, with the issue as to liability, upon which no verdict other than in name had been rendered, forever closed against any inquiry. ‘An examination of all the evidence relating to the injury and its cause and the conduct of the plaintiff, as well as the defendant’s agents, might show that it is so interwoven with that relating’ to damage that to fairly ascertain what is a just compensation the plaintiff should receive, if he is entitled to recover at all, can best be determined by tiying the whole ease before one judge and one jury instead of “splitting it up” between different judges and different juries.’ Norfolk Southern R. Co. v. Ferebee, 238 U. S. 269, (59 L. Ed. 1303, 35 Sup. Ct. Rep. 781, see, also, Rose’s U. S. Notes).”
For these reasons the judgment of the Circuit Court is affirmed. Affirmed.
