Opinion
No. 29021.
December 15, 1930.
1. APPEAL AND ERROR.
Verdict of jury so large as to be shocking to enlightened conscience should be set aside.
2. APPEAL AND ERROR.
In determining whether verdict is result of passion or prejudice and should therefore be set aside, supreme court may consider amount of verdict at former trial for considerably less.
APPEAL from circuit court of Lauderdale county. HON. J.D. FATHEREE, Judge.
Amis, Dunn Snow, of Meridian, for appellant.
Under the plea of contributory negligence it became pertinent on the second trial to go into the question of the negligence of the defendant in the premises in order to determine the degree of negligence, if any, on the part of plaintiff, and the degree of negligence on the part of the defendant, and the amount imputable to each.
A clear case of contributory negligence is conclusively shown by the undisputed testimony. The refusal of the trial court to grant the peremptory instruction requested by the appellant to the effect that the appellee was guilty of contributory negligence was erroneous, and the error of the court was highly prejudicial to the rights of the appellant.
This court held on the former appeal that a judgment for twenty-five thousand dollars was excessive and reversed the cause for that reason. The testimony on the second trial did not show any reason for any increase in the award of damages over the amount which would have been justified on the first trial.
Reily Parker, of Meridian, for appellee.
The defense of contributory negligence is always an affirmative defense, and the burden of proof as to it is upon the defendant. This is the rule in Mississippi and the rule enforced in the federal courts. By the express provisions of our statute all negligence is now a question for the jury.
Y. M.V.R.R. Co. v. Lucken, 102 So. 393; M. O.R.R. Co. v. Campbell, 75 So. 554.
The rule in giving a peremptory instruction is that conceding all the facts to be true which the testimony tends to establish, and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made, or nothing to be submitted to the jury.
G. S.I.R.R. Co. v. Prine, 79 So. 62; American Trading Co. v. Ingram-Day Lumber Co., 69 So. 707.
Contributory negligence is a defense to be affirmatively proved. It will be presumed the injured party was in the exercise of due care until the contrary is made to appear.
L.R. F.S. Ry. Co. v. Eubanks, 3 A.S.R. 245.
Where the facts are conceded, but the inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury, and not the judge, which is to be appealed to.
Southern Railway Co. v. Floyd, 55 So. 287.
It is always difficult for a court to determine whether the verdict of a jury was influenced by passion or prejudice.
I.C.R.R. Co. v. Williams, 110 So. 510.
It was the province of the jury, and the jury alone, to measure in dollars and cents the amount due for physical and mental anguish and suffering, and, unless in a case where the verdict plainly shows that the jury must have been influenced by passion, prejudice, or corruption, this court never interferes with their finding as to damages. This court has no scales delicate enough to weigh physical and mental anguish. At best it is an extremely difficult task.
Y. M.V.R.R. Co. v. Wallace, 45 So. 857; Hardy v. M.C.R.R. Co., 41 So. 505.
Argued orally by Ed. Snow, for appellant, and by Marion W. Reily, for appellee.
There have been two trials of this case. On the first trial there was a verdict and judgment for appellee in the sum of twenty-five thousand dollars. From that judgment appellant prosecuted an appeal to this court. On the third of March of the present year, the judgment was reversed, and the cause remanded to be tried on the issue of damages alone. S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650. The ground of reversal was that, in view of the indefiniteness and uncertainty of the evidence then before the court as to the nature and extent of appellee's injuries, the verdict was excessive. On the second trial there was a verdict and judgment in the sum of forty thousand dollars, and from that judgment appellant prosecutes this appeal.
On the last trial the evidence on the issue of liability was in all substantial respects the same as it was on the first trial; but, on the question as to the nature and extent of appellee's injuries, the evidence was very much more definite and satisfactory. Appellee made out a much stronger case in that respect than she did on the first trial.
The only errors assigned and argued that we deem of sufficient merit to require a discussion by the court are that the court erred in refusing to instruct the jury peremptorily, at appellant's request, that appellee was guilty of contributory negligence, and that her damages should be reduced accordingly; and that the verdict is so excessive in amount as to evince passion and prejudice on the part of the jury, and, therefore, the court erred in overruling appellant's motion for a new trial based on that ground.
At appellant's request, the court did submit to the jury, by proper instruction, the question of whether appellee was guilty of contributory negligence. The giving of this instruction necessitated the retrial of the question of negligence, and that is the reason that the last trial was not devoted alone to the issue of the extent and nature of appellee's injuries. The evidence in the case on the question of negligence is very fully set out in the opinion on the former appeal. As above stated, it was substantially the same in all respects on the last trial. We refrain, therefore, from setting out again the evidence on that issue.
We are of the opinion that the court committed no error in refusing to charge the jury peremptorily that appellee was guilty of contributory negligence by reason of which her damages should be proportionately reduced by the jury. There was evidence tending to show that appellee was guilty of negligence proximately contributing to her injury. But this evidence was not without dispute. The jury could very well have found either way.
We approach the other question with great doubt and hesitation. Whether in a given case the verdict of a jury is the result of passion or prejudice is a very delicate one for the supreme court, the members of that court not having seen and heard the witnesses testify and not having observed their demeanor on the witness stand. However, it is a question that the court must pass on. We know of no better rule than that, where the verdict of the jury is so large it is shocking to the enlightened conscience, it ought to be set aside. We have in this case the verdict of two juries, the first for twenty-five thousand dollars, and the second and last for forty thousand dollars. In considering this question we think that fact should have great weight with the court. Taking into consideration the two verdicts, and the further evidence on the last trial which made the nature and extent of appellee's injuries very much more definite and satisfactory than on the first trial, we cannot say that the verdict for twenty-five thousand dollars is too much, but we do hold that the last verdict of forty thousand dollars is so large that a person of good judgment and the right moral sense would turn away from it as being wrong. We reach the conclusion, therefore, that the verdict of forty thousand dollars in this case is so excessive as to evince passion or prejudice on the part of the jury, and, unless appellee will remit the judgment down to twenty-five thousand dollars within ten days from the rendering of this opinion, the judgment will be reversed for a new trial on the issue of damages; on the other hand, if such a remittitur is entered, the judgment will be affirmed for the sum of twenty-five thousand dollars.
Affirmed, with remittitur.