Fitzgerald ex rel. Fitzgerald v. Dobson

Walton, J. As the plaintiff, a little girl, nine years of age, was walking quietly along the street, she was suddenly set upon by the defendants’ dog, a large English mastiff, and thrown down upon the ground, and bit with such force and violence that the dog’s teeth went through her clothing and into her flesh, and inflicted a wound upon her left hip nearly two inches in length [564] .and half an inch or more in depth. For these injuries she has ■obtained a verdict for $1,450. The first question is whether this amount is so large as to ¡require the court to set the verdict aside and grant a new trial. We do not think it is. The assault was a severe one. Not only was the plaintiff severely wounded, but she must have been .greatly shocked and frightened. And the evidence tends to show that she was taken sick immediately after the assault and •confined to her bed for several weeks, and that she has been •lame ever since. There is no reason 'to believe that she is shamming. In fact, we understand it to be conceded that she is .now suffering from "hip disease.” The defendants contend, and it may be true, that this is the result of hereditary scrofula, .-and not the bite of the dog. To this, it is readied, that while it ■may be true that the plaintiff has a naturally weak and delicate ■constitution, and ivas for that reason more likely to be seriously affected by wounds and shocks and frights, still, the assault of the dog must have been the direct and proximate cause of much, if not the whole, of her subsequent sufferings and sickness, and that ¡the amount assessed by the jury is by no means excessive. We lhave read the evidence with care, and in our opinion another trial would be as likely to result in an increase as a diminution of the ■damages. Certainly the defendants can have no reasonable expectation of reducing the damages enough to cover the costs of ■auother trial. The trial already had lasted eight days, and the expense for counsel and for witnesses, and especially for the medical expert witnesses from a distance, must have been large; and there is no reason to suppose that another trial would occupy less time or be less expensive. A new trial would not therefore be likely to be of any benefit to the defendants. It might result in a serious loss to them. To the plaintiff it would be a great hardship. That she is lame and feeble there can be no doubt. .During the trial already had, she was subjected to many painful irnd indelicate examinations. Her spine was examined by percussion. Her diseased limb was tested by pressure and by bending and flexing the joints. In one instance, in a state of nudity, she was laid upon a board and thus examined. And all [565] tills, not with a view to her medical treatment, but to ascertain the extent of her injuries, and whether or not she was shamming. Surely, to justify granting another trial, and again subjecting this little girl to similar treatment, the court ought to have strong reasons. We find no such reasons in the amount of the verdict. Nor do we find any thing in the exceptions to justify granting a new trial. All the rulings admitting and excluding evidence, and the instructions to the jury, were, under the circumstances disclosed in the report, so obviously correct, that we do not deem it necessary to discuss them. Motion and exceptions overruled. Judgment on the verdict. Peters, C. J., DaNeortii, Emery, Foster, and Haskell,. JJ., concurred.