Opinion
No. 4912.
November 7, 1928.
In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.
Action by Robert Hutton against the Norfolk Western Railway Company. Judgment for plaintiff for part of sum demanded, and plaintiff brings error. Affirmed.
Robert B. Newcomb, of Cleveland, Ohio (Newcomb, Newcomb Nord, of Cleveland, Ohio, and Sawyer Pichel, of Cincinnati, Ohio, on the brief), for plaintiff in error.
Burton P. Hollister, of Cincinnati, Ohio (Henry Bannon, of Portsmouth, Ohio, and F.M. Rivinus, of Philadelphia, Pa., on the brief), for defendant in error.
Before DENISON, MACK, and MOORMAN, Circuit Judges.
The assignments of error which relate to liability we cannot consider, because there was a judgment in favor of plaintiff in error for $3,500 in damages. None of such rulings complained of, if erroneous, which we do not determine, could have affected the amount of the recovery. One of the grounds for a new trial was that the damages awarded were grossly inadequate — a question addressed to the discretion of the trial court. Robinson v. Van Hooser (6 C.C.A.) 196 F. 620; Hines v. Smith (6 C.C.A.) 270 F. 132; Yellow Cab Co. v. Earle (C.C.A.) 275 F. 928. Error has not been assigned to the action of the court in overruling that ground. The reasons of the court for overruling it are not disclosed in the record. Conceivably they were that the weight of the evidence was against any recovery by plaintiff, and that the verdict was injurious to the legal rights of the defendant and not to plaintiff. Under the evidence the existence of actionable negligence and the absence of assumption of risk are at the best extremely doubtful, and we ought not to say that there was miscarriage of justice which we should voluntarily notice and act upon unless we could also say that the weight of the evidence was in favor of a recovery. This we cannot do.
Judgment affirmed.