Souza v. United Electric Railways Co.

O’CONNELL, J.

The above entitled case is before this Court on defendant’s motion for a new trial, after verdict for the plaintiff in the sum of $17,500. The ground relied upon in said motion are as follows:

1. That said verdict is contrary to the evidence and the weight thereof.

2. That said verdict is contrary to the law.

3. That the amount of damages awarded by said verdict is excessive.

4. That said defendant -has discovered new and material evidence in said case which it had not discovered at the time of the trial thereof, and which it could not with reasonable diligence have discovered at any time previous to the trial of said case, as by affidavits to be filed in Court will be fully set forth, said affidavits being made part of this motion.

The trial of this case before this Court was the fifth trial thereof, the first trial resulting in a verdict for the plaintiff in the sum of '$1000, the second in a disagreement, the third in a directed verdict for the defendant, the fourth in a verdict for the plaintiff in the sum of $15,000 and the instant case in a verdict for the plaintiff in the sum of $17,500.

In reaching its conclusion in the present ease, the Court has not been influenced by tbe result of any of tbe other trials, especially as it appears from the record that much, or at least part of ithe testimony was considerably at variance with testimony given at previous trials, due perhaps to a less accurate recollection, by reason of the lapse of time, but varying nevertheless.

For plaintiff: Francis E. Sullivan. For defendant: Clifford Whipple.

The Court had the opportunity of seeing and hearing the witnesses on both sides, observing their demeanor on the stand, their manner of testifying, and so forth, and after a careful consideration of the entire evidence believes that the jury was fully warranted and justified in reaching a verdict for the plaintiff.

The plain tiff received severe and permanent injuries of such a nature that he will never again be able to engage in a gainful occupation, which would require sustained and continuous effort. His earning power has been rendered practically nil and in the opinion of the Court the damages awarded are merely moderate and clearly not excessive.

The ground of newly discovered evidence was not pressed by the defendant.

The defendant’s motion for a new trial is denied.