178 Iowa 561 | Iowa | 1916
Plaintiff and defendant Avere schoolmates, although not chums or cronies. Plaintiff was 14 years of age, and defendant, 15. They lived within a few blocks of each other, in the town of Britt, and, on the day plaintiff received his injuries, they went to Eagle Lake, near the toAvn, where they were expecting to meet some other town boys. Arriving at the lake, they went to the boathouse, and near at hand discovered an automobile, belonging to a man by the name of Castle, who was out on the lake hunting. The two boys played around the automobile awhile, and until Mr. Castle came ashore.
Almost immediately upon the discharge of the gun, the owner appeared upon the scene, and discovered plaintiff reeling around as if he were crazy, and exclaiming, “I told you not to point it at me.” Very soon thereafter, another witness arrived on the scene, and then plaintiff ■ declared: “I ran around the automobile and then you shot me,” address
“He was pointing the gun at me, and I ran and held up my arm. Q. And state whether or not that was why you ran? A. Well, when I told him not to and he laughed at me, I thought maybe he might have meant to aim it at me, or maybe he'didn’t.”
Our statute on new trial, contrary to the written law of most of the states, and contrary to what is generally understood as the common law, now provides that a new trial may be awarded on the ground of inadequacy of the damages awarded. See Code Sec. 3755, as explained in Hubbard v. Town of Mason City, 64 Iowa 245; Kinser v. Soap Creek Coal Co., 85 Iowa 26; Ward v. Marshalltown L. P. & R. Co., 132 Iowa 578; Tathwell v. City of Cedar Rapids, 122 Iowa 50. And in such cases, a large discretion is vested in the trial court. Its order granting a new trial on this ground will not, as a rule, be disturbed, unless there has been an abuse of discretion. Assuming that plaintiff was entitled to actual damages for a willful and malicious tort, that he suffered the loss of an eye, endured pain and suffering, is permanently injured, and i^ likely to have trouble with-his other eye, that shot are embedded in his flesh or skull, and that his injuries .are permanent, and he is disqualified for certain kinds of work, we are satisfied that the trial court did not abuse its discretion in setting aside the verdict for $300 because it was inadequate. Whether or not the act was willful and malicious within the meaning of the law, was a jury question, and that issue was, as we think, properly submitted. The jury having found for plaintiff on that issue,
Appellant’s main propositions are that a verdict should in no case be set aside for inadequacy. Although this was the rule prior to the adoption of the Code of 1873, as pointed out in the eases cited, it is not the present one.
Again, it is said that plaintiff was not entitled to anything more than nominal damages. The verdict, however, is bottomed upon the theory of compensatory damages, and the finding was for plaintiff on that issue. The question then is, assuming liability for the actual damages sustained, Was the amount awarded reasonably adequate, or was it so inadequate as to indicate that the jury became confused, and neglected to follow the court’s instructions'? As already suggested, this ivas a fair question for the trial court, and, as it granted the motion, we are not justified in interfering.
. It cannot be fairly said, however, that the verdict was really for the defendant; for more than nominal damages were awarded. No error appears, and the judgment must be, and it is, — Affirmed.