Noel v. Dubuque, Bellevue & Mississippi R. , 44 Iowa 293 ( 1876 )

Day, J.

The action of the court, it seems to us was clearly erroneous. The plaintiff has the right to have the amount of his damages assessed by a jury. He is under no obligation to accept the determination of the court upon that question. ■True, the court has rights which he may exercise, and duties which-he should perform.

If satisfied that the verdict is so excessive as to appear to have'been given under the influence of passion or prejudice, it is both his right and his duty to set it aside and grant a new trial. If satisfied that the verdict ought not to stand because of its excessiveness he may fix upon an amount deemed reasonable, and may give the successful party the option to accept that sum, or submit to the setting aside of the verdict, and the granting of a new trial. This is a very common practice, and it has been sanctioned by this court. See Brockman v. Berryhill, 16 Iowa, 183. But we know of neither principle nor precedent, which justifies the nisi prius court in fixing upon an arbitrary sum, less than the verdict of the jury, and sajdng to the successful party, you must accept that. No authority has been cited by defendant to sustain this action.

As the court below, under the evidence submitted, thought the damages excessive, but that plaintiff was entitled to $1,000, the cause will be remanded with directions to give the plaintiff the option of accepting that sum, and, in the event of his refusing to do so, that the verdict be set aside and a new trial granted.

Revised.