| Tenn. | Feb 15, 1887
The intestate of the defendant in error, James K. Begg, was a locomotive engineer in the service of the plaintiff' in error, and while thus in their service was killed by and through the negligence of his employer. Suit was instituted by his administrator to recover damages. There have been three trials of the cause. There was a verdict for $6,400 as a result of the first trial. The record shows that the Circuit Judge, deeming the verdict excessive, ruled, upon the motion for a new trial, that a neAV trial should be granted unless the plaintiff' below would remit $8,400 of his verdict. This the plaintiff declined to do, and a new trial was granted. The second trial resulted in a hung jury. The third and last trial, and the one now under consideration, resulted in a verdict for $8,000. Erorn. the judgment on this verdict the plaintiff in error has appealed. 1
The Commission of Referees having heard the case, recommend a reversal in an able and carefully prepared report, wherein they place their recommendation expressly upon the ground that the judgment entry overruling the motion for a new trial shows that the Circuit Judge was of opinion that the verdict was excessive under the facts of the case, yet had refused to grant a new trial. The entry refusing a new trial was as follows:
“The motion for a new trial having been heard, the Court declines to set aside the verdict, but does not approve the same. The Court at a foi’mer*402 term set aside a verdict for a smaller amount because it was excessive for the facts of the case, and the Court nowr is of opinion that if any recovery at all was proper, the verdict is excessive; but to terminate the litigation in this case the verdict is sustained that the Supreme Court may pass on these facts, this Court having tried the case for the third time.”
Taking into -consideration all the parts of this entry, and particularly the recital that ho had once before granted a new trial, not because it was against the weight of the proof or contrary to law, but expressly upon the ground that he thought the verdict excessive, we are of opinion that the disapproval of the verdict expressed by the Judge is based not upon any dissatisfaction with a verdict for the plaintiff below, but a disapproval of the amount of the damages. He thought it excessive upon the facts, but evidently did not think it so excessive as to indicate passion or prejudice, and make it his duty to set it aside. On the contrary, he expressed a desire that the parties should submit the case upon' the verdict to the Supreme Court. If he was not satisfied that under the facts and law that the plaintiff should have a verdict, it was his plain duty to set it aside and grant a new trial. The doctrine is well settled in this State that if the Circuit Judge is of opinion that a verdict is against the weight of the evidence, or is contrary to the law as charged by himself, he should grant a new
It is insisted that this rule applies to this" case. This would be so if the dissatisfaction of the Circuit Judge clearly appeared to be due to any
In actions ex contractu, even if sounding in damages, the proof affords some definite and fixed rule and standard by which the judgment of the jury may be tested. An excessive verdict in all such cases is ground for new trial. So, as before stated, in any class of case, if the verdict is contrary to the law, or to the weight of the evidence, it is ground for new trial in nisi prius trials. But in actions for personal torts sounding in damages we understand the rule concerning new trials for mere excessive damages to be very different.
“But the practice has long been settled conceding to the Court the right to control verdicts in relation to damages, as well as every other incident, in all cases without exception; with this exception, however, that on questions of contract, or when an ascertained test of the correct amount is furnished, the Court, interposes the correction with less reluctance than in cases of mere injury, where the damage is at large and the finding on that point must be arbitrary.” Graham & Watterman on New Trials, Vol. I., side page 410.
The distinction .between the rules governing new trials in the two classes of cases has long been recognized at the common law. Justice Buller, upon the question, said:
“In actions founded upon torts the jury are the sole judges of the damages, and therefore in such cases the Court will not grant a new trial on account of the damages being trifling or excessive. But in actions founded .upon contract, and where debt would lie, the Court will inquire into the circumstances of the cases, and relieve if they so reason.”
In the case of Duberly v. Gunning, 1 Burrow, 609, there Avas a verdict for the plaintiff of £5,000 damages, the action being one by the husband for the seduction of his wife. Upon a' motion for a
“Under all the circumstances, I think the damages were much larger than ought to have been given. But here I doubt what conclusion I ought to draw from all the premises; and my difficulty arises from my being unable to fix any standard by which I can ascertain the excess which, according to my view of the case, I think the jury have run into. Where there is no such standard, how are the errors of the jury to be rectified? What measure can we point out to them by which we ought to be guided? I should have been satisfied even if nominal damages only had been given; but as the jury have formed a different judgment upon the evidence, I know not why my judgment should be preferred to theirs upon such a subject.”
The rule was discharged. In the case of Chambers v. Caulfield, 6 East, 244, it being an action for seduction in which there was a verdict for ¿£2,000, upon a motion for a new trial, Lord Ellenborough delivered the opinion of the Court, and said:
“As to the second ground upon which the new trial was moved for — that of excessive damages— if it appeared to us, from the amount of the damages given, as compared with the facts of the case laid before the jury, -that the jury must have acted under the influence either of undue motives or some gross error or misconception on. the sub*407 jeet, we should have thought it our duty to submit the question to the consideration of another jury; but this does not, upon a review of the whole evidence, appear in the present instance to have been the case.”
In Graham & "Watterman’s very exhaustive work upon New Trials, Vol. I., side page 452, the editors, after discussing a great array of cases bearing upon the subject now under consideration, sum up the authorities as follows:
“It is clear the reason for holding parties so tenaciously to the damages found by the jury in personal torts is that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury governed by a sense of justice. It is, indeed, one of the principal causes in which the trial by jury has originated. From the prolific fountain of litigation numerous cases must daily spring up calling for adjudication for alleged injuries accompanied with facts and circumstances affording no definite stand- ■ ard by which these alleged wrongs can be measured, and which, from the necessity of the case, must be judged of and appreciated by the view that may be taken of them by impartial men. To the jury, therefore, as a favorite and almost sacred tribunal, is committed by unanimous consent the exclusive task of examining those facts and circumstances and valuing the injury and awarding compensation in the. shape of damages. The*408 law that confers on them this power and exacts of them the performance of the solemn trust, favors the presumption that they are actuated by pure motives. It therefore makes every allowance for different dispositions, capacities, views, and even frailties in the examination of heterogeneous matters of fact where no criterion can be supplied ; and it is not until the result of the deliberations of the jury appear in a form calculated to shock the understanding and impress no dubious conviction of their prejudice and passion that courts have found themselves compelled to interpose.”
The decisions of this Court have been in harmony with the common law rule, as we have ascertained it to be in the authorities cited. In the case of Boyers v. Pratt, 1 Hum., 93, Judge Turley said that in actions for pure personal torts new trials are sometimes granted because of the enormity of the damages. It is never done unless, in the language of Judges Thompson and Spencer, in the case of McConnell v. Hampton, 12 Johns., 236, “the damages are flagrantly outrageous and extravagant, evincing intemperance, passion, partiality, ■ or corruption, such as all mankind would pronounce unreasonable.”
En the case of Goodall v. Thurman, 1 Head, 217, this Court, in answering an argument for a new trial, based upon the alleged excessiveness of the damages recovered in an action for seduction, said: “After all, we do not feel authorized to
The intestate of the plaintiff in error is ' shown by the proof to have been a young and healthy man, with an expectancy of life of thirty-one years. He left a wife and child. He was receiving wages of four dollars per day. He was sober, prudent, and industrious. The circumstances of his death were very distressing, and his suffering was intense. There is evidence justifying the jury in believing that his engine was thrown from the track by reason of a defect in the road at a sharp and dangerous curve on the mountain side, near Cowan, Tenn. Of this defect the company had notice, the proof showing that the company’s track-walker had several times shortly before the accident notified the section boss that the track at this very point where the engine — upon which the deceased was at the time he met his death— was thrown from the track was out of alignment, and had lost elevation, and that the derailment of a train at that point was to be apprehended. This warning was neglected. There Avas likewise
Under all the facts of the case we cannot say that the verdict is excessive to a point indicating either partiality, passion, prejudice, caprice, or corruption. No error in the charge is complained of. The report of the Referees will be set aside, and the judgment of the Circuit Court affirmed.