Opinion
April Term, 1896.
Thomas S. Moore, for the appellant.
Joseph Fitch, for the respondent.
A car of the defendant collided with a market wagon driven by the plaintiff. By the collision the plaintiff was thrown from his seat to the ground and injured, the wheels of his wagon probably passing over him. No question is raised by the defendant on this appeal except that the damages are excessive. The plaintiff was a grocer. He was confined in bed two weeks as the result of the injury, and to the house for five weeks more. No proof was given of any pecuniary loss by his absence from business, or of the value of his time. The injuries were that his legs were badly bruised from the fall and from being run over by the wheels of the wagon. No bones were broken; no disfigurement or deformity of his person was occasioned by the accident. His attending physician testified that when first called he found the plaintiff suffering from shock, which passed over in a day or two; that his legs were bruised, as though they had been run over; that there was a contusion on his right hip. When asked what was the matter with his legs he answered: "I couldn't state more fully than I have what was the matter with his legs; they were bruised and swollen; that, from a medical point of view, answers the whole thing." The evidence of the defendant's physician, who examined the plaintiff, was to the effect that on such examination he could discover no injury except a scar, and that the right leg was a little swollen. The accident happened on the 1st day of May, 1895, and the trial was had in October of the same year.
It is difficult to say anything more about this case than that, in our opinion, the verdict is grossly extravagant. It is not necessary to refer to other cases, where either large verdicts have been reduced or have been allowed to pass. We are very chary of interfering with the award of damages made by juries, but there must come a point at which it is our duty to intervene. If this plaintiff were physically disabled, or even disfigured and deformed, we should not feel warranted in interfering with a verdict that might go beyond our approval. But here the plaintiff has no deformity and has lost no member. Save a scar he bears no marks of his injury. We are aware that on the trial a physician testified in his behalf that there was a tenderness in his legs with a tendency to dropsy, and a breaking down of the soft tissues. But this testimony is of the flimsiest character. The physician who attended the plaintiff for his injuries testifies to nothing of the kind, and the defendant's physician positively contradicts the existence of these symptoms. It was incumbent on the plaintiff to establish by a fair preponderance of proof the existence of these after-effects of his injuries, before he could claim compensation for them from the jury. We think on this he has not only failed, but that the weight of evidence is decidedly against him.
The judgment should be reversed and a new trial ordered, unless plaintiff consents to reduce the verdict to the sum of $2,000, in which case the judgment, as reduced, is affirmed, without costs.
All concurred.
Judgment reversed and new trial ordered, costs to abide event, unless plaintiff stipulates within twenty days to reduce the verdict to $2,000. If such stipulation is filed, the judgment so modified is affirmed, without costs.