McNeil v. Lyons , 20 R.I. 672 ( 1898 )

This is the plaintiff's petition for a new trial on the question of damages only, on the ground that the damages awarded by the jury are grossly inadequate to compensate her for the injuries sustained and the loss and damage resulting from said injuries. The action is case for negligence. It is alleged that the defendant left a pile of sewer planking in front of the door of plaintiff's house, and that she, while going from said door to the area or walk immediately in front thereof, in the evening, to attend to a lady friend who had called, fell over said pile, which was not protected by any light or otherwise, and was seriously injured. The jury assessed the plaintiff's damages at the sum of $1,000.

An examination of the evidence satisfies us that this sum is clearly inadequate to compensate the plaintiff for the damages sustained. Her injuries were such as to require medical attendance daily, for a long time, and, at short intervals, up to the time of the trial, which was about nine months after the accident, and, according to the testimony of several reputable physicians, she will require medical attendance for a considerable time, at least, in the future. There is no claim made that the plaintiff is simulating or feigning pain and disease; but, on the other hand, all of the medical experts, including the one called by the defendant, agree that she is seriously and may be permanently injured, and that her suffering has been both protracted and severe. She has not been able to do any work since the accident, and it is with difficulty that she can get about the house. Her doctors' bills at the time of the trial amounted to $485, while her loss of time at the shop, where she was employed and was earning on an average $10 per week, amounted to about $400 more. In view of these facts, it needs no argument to show that the damages awarded were not compensatory. The case is distinguishable from McGowan v. Railway Co.,20 R.I. 264, relied on by defendant's counsel, in that there the plaintiff was awarded five thousand dollars, while the doctor's bills and other direct money losses, as we recollect them, were much less than in the case before us; although we are not inclined to think that the plaintiff in this case was so seriously injured as was the plaintiff in that. But if the plaintiff here is entitled to recover at all, she is clearly entitled to receive such sum as will fairly compensate her, or make her whole, not only for her actual money loss, but also for her suffering and disability. See Whipple v. Wanskuck Co.,12 R.I. 321.

In Collins v. Railway Co., 12 Barb. 492, the law is briefly stated thus: "Where the damages found by the jury are either so large or so small as to force upon the mind of every man, familiar with the circumstances of the case, the conviction that by some means, the jury has acted under the influence of a perverted judgment, it is the duty of the court in the exercise of a sound judicial discretion, to grant a new trial." See also Holyoke v.Railway, 48 N.H. 541; Richards v. Sanford, 2 E. D. Smith, 349.

As the evidence is not all before us, we cannot properly grant the plaintiff's request that the new trial shall be had on the question of damages only, as it may be that the defendant has a good defence on the merits of the case. But if the plaintiff desires a new trial generally, and shall so elect, in writing, within ten days from the filing of this opinion, an order may be made granting the same. Otherwise the petition to be denied and judgment entered on the verdict.

NOTE. — The plaintiff elected to take a new trial.