Diblin v. Murphy — 5 N.Y. Super. Ct. 19

Majority

p. 19

Diblin v. Murphy.

Headnote

In an action of tort, where the jury have given such excessive damages that the court feel bound to set aside their verdict, the court may, in its discretion, instead of setting it aside peremptorily, give to the plaintiff the option of reducing his recovery to such a sum, which, if it had been the verdict, would not have been deemed unreasonable, by remitting the excess of the verdict beyond that sum; and on his só doing, may deny the motion for a new trial.

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So held in an action for injuries occasioned by being run over in the street by an omnibus, and the damages reduced from fifteen hundred to five hundred dollars.

(Before Oaklet, Ch. J., and Sandfokd, J.)

May 16th;

May 26th, 1849.

■ Tins was an action on the case, tried before Saotjfoed, J., on the 4th of January, 1849. At the trial the plaintiff proved that while crossing the Third avenue at Twenty-sixth street, in this city, she was knocked down by the horses attached to an omnibus, and run over by the omnibus. Her right arm was fractured in two places, and she was laid up for nine weeks. At that time she was seventy-two years old, and before the injury she could earn two dollars a week, but since has been unable to earn any thing. It was proved she would never be likely to recover the full use of her arm.

The defendant was one of the proprietors of the line of omnibuses to which the one that occasioned the injury belonged, and it was driven by one of his drivers. There was evidence given by him tending to show that the injury happened through the plaintiff’s own carelessness.

The judge instructed the jury, among other things, that if the injury were owing to the negligence or carelessness of the driver, without negligence or want of care on the part of the plaintiff, she was entitled to recover her damages occasioned thereby. The jury found a verdict for the plaintiff for fifteen hundred dollars damages. Several exceptions were taken at the trial, which it is not deemed necessary to state. The defendant moved for a new trial on a case.

E. C. Gray, for the defendant.

R. Busteed, for the plaintiff.

There is evidently nothing in the points of law presented by the defendant. The only question in the case relates to the damages.

We are certainly inclined to think the damages given were too great. There was nothing to show an aggravated case

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against the driver; and there was evidence on both sides as to the point whether the driver was guilty of negligence, or whether the occurrence was owing to the plaintiff’s own carelessness.

We are satisfied that the verdict ought to have been considerably less; and the amount is so much more than it should have been, as to indicate either passion or prejudice on the part of the jury. It is a Case, therefore, where we feel compelled to interfere with the verdict, and to set it aside as excessive, unless some other remedy may be adopted.

Then what is proper to be done ? We have considered it, and find no objection in principle to reducing the verdict to an amount, such as if the jury had found it as the damages, we would not interfere with their conclusion. That is in effect, for the court to say to the plaintiff, if you will enter a remittitur so as to reduce the verdict to such a sum as we think would not have been unreasonable if it had been found by the jury, we will not set it aside. This practice is very common in actions upon contract, where the party has recovered more than he is entitled to.

The only doubt is whether in actions of tort the court can adopt the same practice. We see no objection to it in principle, and it will often relieve the parties from the expense and delay of a new trial.

We find that this has been done in an action of trover in the courts of South Carolina. (Guerry v. Kerton, 2 Rich. R. 507; and see Young v. Englehard, 1 Howard’s Miss. R. 19.)

That the court has entire control of the matter, is shown by the case of Boyd v. Brown, 17 Pick. 453 , which was a similar case, the action being trespass. There the court, finding that excessive damages had been given, ordered a new trial for the assessment of the damages only, and not permitting either party to go into any question as to the right to recover. The decision shows, we think, that the court may give the plaintiff the option to reduce his verdict to an amount which the court would not have deemed unreasonable or excessive.

We shall therefore make an order which will give that option to the plaintiff, and that the amount should be fixed at five

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hundred dollars. The verdict is to be set aside on payment of costs, unless the plaintiff, within ten days, will stipulate to reduce it to this sum, in which case the motion for a new trial is denied.^[1]

(a) (a) The plaintiff stipulated accordingly, and there was no new trial.