A court should be reluctant to disturb a jury verdict for personal injuries upon the ground that the amount is excessive. McKay v Hargis, 351 Mich. 409, 419; 88 N.W.2d 456 (1958); Gibbons v Delta Contracting Co, 301 Mich. 638, 653; 4 N.W.2d 39 (1942). In evaluating a jury verdict for possible remittitur, a court should review the verdict in the light most favorable to the plaintiff.
Indeed, within the Barringer opinion the Supreme Court made it clear that comment by counsel on the failure of a party to call a witness, regardless of who controls the witness, is not forbidden. Barringer, supra, p 604, quoting Gibbons v Delta Contracting Co, 301 Mich. 638 ; 4 N.W.2d 39 (1942). More recently, in Reetz v Kinsman Marine Transit Co, 416 Mich. 97; 330 N.W.2d 638 (1982), the Supreme Court cited Barringer in noting that when a witness is available to either party, counsel may still point out that the opposing party did not call the witness and that the jury may draw an inference against that party.
That presumption does not operate; however, in the case of a witness, who is equally available or accessible to both parties by process of the court. See generally Barringer v Arnold, 358 Mich. 594; 101 N.W.2d 365 (1960); Gibbons v Delta Contracting Co, 301 Mich. 638; 4 N.W.2d 39 (1942). Affirmed.
See, also, Macklem v. Warren Construction Company, 343 Mich. 334, 338. In Gibbons v. Delta Contracting Co., 301 Mich. 638, the action was brought to recover damages resulting from a collision between plaintiff's automobile and defendant's truck. At the time of the collision one Louis Dain was riding in the truck with the driver.
The question of damages rests in the sound judgment of the trier of facts, and this Court will not reverse the jury's finding unless the Court's conscience is shocked by the award. See Cawood v. Earl Paige Co., 239 Mich. 485; Gibbons v. Delta Contracting Co., 301 Mich. 638; Kurta v. Probelske, 324 Mich. 179; Samuelson v. Olson Transportation Co., 324 Mich. 278. We do not conclude that the jury erred in determining damages in this case.
Plaintiff cites us to the rule that failure to produce evidence within a party's control raises a presumption or inference that if produced it would operate against him. See e.g., Brandt v. C.F. Smith Co., 242 Mich. 217; Leeds v. Masha, 328 Mich. 137; Gibbons v. Delta Contracting Co., 301 Mich. 638; Griggs v. Saginaw Flint Railway Co., 196 Mich. 258. However, we have also stated in Cole v. Lake Shore Michigan Southern R. Co., 81 Mich. 156, 161, 162:
" This language was cited with approval in Gibbons v. Delta Contracting Co., 301 Mich. 638, and in Alley v. Klotz, 320 Mich. 521. See, also, Retan v. Railway Co., 94 Mich. 146; In re Clark's Estate, 234 Mich. 471.
This doctor testified plaintiff had concussion of the brain and various other physical injuries. In Gibbons v. Delta Contracting Co., 301 Mich. 638, at page 653, quoting from Cleven v. Griffin, 298 Mich. 139, 141, we said: "`There is no absolute standard by which we can measure the amount of damages in personal injury cases.
Under the testimony in this case the trial court was not in error in submitting the issues of negligence and contributory negligence to the jury. Tuttle v. Railway Co., 193 Mich. 390; Gibbons v. Delta Contracting Co., 301 Mich. 638; McGrath v. Hargraves, 310 Mich. 510. There was substantial evidence to support the finding of the jury, and in consequence it should not be disturbed on the ground that it was against the great weight of the evidence. Major v. Southwestern Motor Sales, Inc., 314 Mich. 122; Werker v. McGrain, 315 Mich. 287.
The awarding of damages for pain and suffering rested in the sound judgment and discretion of the jury. It cannot be said on this record that such discretion was abused, or that the size of the verdict indicates that the jury was in any way improperly influenced in returning it. Cleven v. Giffin, 298 Mich. 139; Gibbons v. Delta Contracting Co., 301 Mich. 638. For the reasons indicated, the judgment is affirmed, with costs to plaintiff.