Fulmele v. Forrest

Boyce, J., charging the jury: Gentlemen of the jury:—This action was brought by Annie Fulmele, the plaintiff, against John Forrest, the defendant, to recover damages for the death and loss of Andrew A. Fulmele, the husband of the plaintiff, alleged to have been occasioned by the negligence of the defendant. The declaration contains one count only, and complains, in substance: That whereas, etc., at the time, etc., the defendant was the owner of a certain dwelling house, known as, etc., in this city, and Andrew A. Fulmele, the husband of the plaintiff, was tenant and occupied and resided in said dwelling house under a demise thereof from the defendant. That for some time prior to the twenty-ninth day of October, A. D. 1910, certain steps or stairs leading from the porch of the said dwelling house became and were greatly out of repair, so that the same were unsafe for use by the said Andrew A. Fulmele and others who had occasion to use the same. That on or about the month of August, A. D. 1910, the said defendant did undertake and did make certain repairs to said steps or stairs, whereupon the said plaintiff avers that it then and there became the duty of the said defendant to make such repairs in a careful, skillful and workmanlike manner, so that the said steps or stairs might then and there and thereafter be reasonably safe for persons having occasion to use the same, etc. That on or about the twenty-ninth day of October, A. D. 1910, while the said Andrew A. Fulmele was in the exercise of due care and caution, using the said steps or stairs, the same by reason of their condition as aforesaid broke, and thereby the said Andrew A. Fulmele fell with great force and violence and suffered injuries whereof, on or about the first day of November, A. D. 1910. he died. — 159 — The facts disclosed by the evidence are within a narrow scope, and we shall not attempt a statement thereof. [1-3] This action is based upon the alleged negligence of the defendant which must be proved, and the burden of proving it rests upon the plaintiff. Negligence is defined to be a failure to observe for the protection of the interest of another person that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. There is no presumption of negligence either on the part of the plaintiff’s husband, or of the defendant, from the mere fact that injury resulted to the plaintiff’s husband, causing his death. Whether his injuries or death resulted from the negligence of the defendant as alleged, you must determine from all the facts and circumstances of this case as disclosed by the evidence. No claim is made that the defendant landlord undertook at the time of the verbal letting of the dwelling house, occupied by the deceased at the time of the accident, to keep the demised premises in repair. The law is that where the landlord does undertake to make repairs; he is liable for injuries resulting from the negligence of himself or his servants, in making such repairs, and this is true where the landlord is under no obligation to make such repairs, but undertakes to make them voluntarily or gratuitously. 24 Cyc. 1116. So in this case the question is not whether the steps were out of repair and unsafe at the time the request to repair was made, but whether the landlord through his representative or agent made the repairs, and if so, were they performed so negligently and unskillfully as that the deceased was subsequently injured in consequence thereof? If the alleged defective repairs proximately caused the injurles resulting in the death of the plaintiff’s husband without his fault contributing to his injuries, your verdict should be for the plaintiff. If the deceased by the exercise of ordinary care could have avoided his injuries, or if his injuries resulted because of intoxication and not from the condition of the steps, the plaintiff cannot recover. [4] If you find for the plaintiff, it should be for such a sum of money as will reasonably compensate her for any and all damages that she has sustained, or may hereafter sustain, by reason — 160 — of the death and loss of her husband, governed by what portion of the gross earnings or income the plaintiff would probably have received from the deceased if he had lived. Your verdict should be for that party in whose favor you find the preponderance or greater weight of the testimony. Verdict for plaintiff. Motion by the plaintiff for a new trial on the ground of the inadequacy of the amount of the verdict. Brief of Plaintiff. The plaintiff’s husband was a man in good health, about forty-six years of age, making from fifteen to seventeen dollars a week, at the time he met his death by reason of the accident complained of. The jury in finding a verdict for six cents damages, awarded an amount plainly inadequate to compensate the plaintiff for the damages occasioned by the death of her husband. Apparently there is no reported case in which a verdict has been set aside by this court on the mere ground of inadequacy of damages. In Johnson v. Porter, 2 Harr. 325, the court says: “We shall not now decide that this court will, in any case, set aside a verdict for a mere inadequacy of damages; and we do not decide the reverse.” In Woolley’s Del. Prac. § 736, it is said: “There is no case in this jurisdiction in which the court has granted a new trial because the damages were too small. Inadequacy of damages, which amounts to a violation of plain and obvious principles of law, however, has been considered a good ground for which to grant a new trial.” It is submitted that, both in England and in this country, the same rule is applied by the courts, at this time, granting new trials where the damages are excessive and where they are inadequate. Sedgwick on Damages, § 1326, says: “ And it is now settled that a verdict will be set aside as inad — 161 — equate for the same reasons that justified setting a verdict aside if excessive.” The rule is laid down in 29 Cyc. 847, as follows: “That the damages recovered are clearly inadequate compensation for the injury sustained is generally ground for a new trial. Where the evidence shows that the prevailing party was entitled to substantial damages, if any, a verdict for nominal damages only, or for an amount clearly less than the damages proved, should be set aside, although the evidence as to liability was conflicting.” The following cases are in point: Falvey v. Stanford, L. R. 10 Q. B. 54; Carter v. Wells Fargo & Co. (C. C.) 64 Fed. 1005. A verdict may generally be set aside for inadequacy upon the same grounds that warrant the court in interfering where they are excessive. Gaither v. Railroad Co. (C. C.) 27 Fed. 545; Schrader v. Hoover, 87 Iowa 654, 54 N. W. 463; Ray v. Jeffries, 86 Ky. 367, 5 S. W. 867; Rawitzer v. St. Paul City Railway Co., 94 Minn. 494, 103 N. W. 499; McDonald v. Walter, 40 N. Y. 551; Aherne v. Plate, 34 Misc. Rep. 480, 70 N. Y. Supp. 254; Bradwell v. Pittsburg, etc., Railroad Co., 139 Pa. 404, 20 Atl. 1046; McNeil v. Lyons, 20 R. I. 672, 40 Atl. 831; Whitney v. Milwaukee, 65 Wis. 409, 27 N. W. 39; Migliaccio v. Fuel Co., 151 Iowa 705, 130 N. W. 720; Leavitt v. Dow, 105 Me. 50, 72 Atl. 735, 134 Am. St. Rep. 534, 17 Ann. Cas. 1072; Alton v. Railroad Co., 107 Minn. 457, 120 N. W. 749; Clark v. Railroad Co., 33 R. I. 83, 80 Atl. 406; Aboltin v. Heney, 62 Wash. 65, 113 Pac. 245; Anderson v. Lewis, 64 W. Va. 297, 61 S. E. 160; Hardeman v. Williams, 157 Ala. 422, 48 South. 108; Railroad Co. v. Mason, 81 Ohio St. 463, 91 N. E. 292, 28 L. R. A. (N. S.) 130; Miller v. Miller, 81 Kan. 397, 105 Pac. 544. Verdicts were set aside for inadequacy of damages, where the action was for damages occasioning death, in Usher v. Scranton Railway Co. (C. C.) 132 Fed. 405; Rawitzer v. St. Paul City Railway Co., 94 Minn. 494, 103 N. W. 499; Lee v. Publishers, 137 Mo. 385, 38 S. W. 1107; Burns v. Merchants’, etc. Oil Co., 26 Tex. Civ. App. 223, 63 S. W. 1061; Migliaccio v. Smith Fuel Co., 151 Iowa, 705, 130 N. W. 720; Netter’s Admr. v. Louisville Railway Co., 134 Ky. 678, 121 S. W. 636. — 162 — Brief of Defendant. A verdict in an action to recover damages incapable of ascertainment by some standard of measurement, and where the damages are unliquidated and the amount to be awarded is discretionary with the jury, will not be set aside for inadequacy of damages. Abbott, Civil Trial Proof, 521; Moseley v. Jamison, 68 Miss. 336, 8 South. 74. A verdict in an action for personal injuries will not be set aside for inadequacy, unless it shock the conscience and clearly show that the jury must have been influenced by passion or prejudice, or that they arrived at their conclusion on some erroneous basis. McGowan v. Interstate R. Co., 20 R. I. 264, 38 Atl. 497; Benton v. Collins, 47 L. R. A. 33 (note); Flanders v. Meath, 27 Ga. 358. Boyce, J., delivering the opinion of the court: [5] The question whether a verdict should be set aside and a new trial granted because of inadequate damages rests in the sound judicial discretion of the trial court. Generally courts are adverse to disturbing verdicts merely on the ground of inadequacy, and will not do so unless the verdict clearly indicates some such wrong or error, as passion, partiality, prejudice, mistake, or misapprehension. Where a verdict is grossly inadequate, or, as in this case, is merely nominal, and it manifestly appears that the plaintiff is entitled to substantial damages, the same legal principles govern, in an application for a new trial, as. where the damages awarded are grossly excessive. But a verdict should not be set aside for inadequacy where the facts and attending circumstances relied upon for a recovery of substantial damages are not clear and undisputed. [6] If, upon a careful consideration of all the evidence, it does not appear that the plaintiff is entitled to have a recovery for substantial damages, as we think the jury in this case may very reasonably have found under all the facts adduced, the court should not set the verdict aside, but rather treat an award of nomina.1 damages for the plaintiff in the nature of a verdict for the defendant. — 163 — It was incumbent upon the plaintiff to show by a preponderance of the evidence that the injury complained of was occasioned by the negligence of the defendant. Under the evidence, the jury may very well have been uncertain (1) as to the primal cause of the accident; (2) as to the defendant’s responsibility therefor; and (3) as to whether the deceased did not equally contribute to his injuries. We are of the opinion that the verdict should be taken as a finding that the plaintiff was not entitled to recover; for we are unable to say, had the jury found for the defendant, that such a verdict would be inconsistent with any fair deduction from the evidence, the general character of which is indicated in the statement above. We are constrained to deny the motion for a new trial, and the motion is dismissed.