Wheaton v. North Beach & Mission Railroad

By the Court, Sanderson, J. : The motion for a new trial'was made upon three grounds: First—Excessive damages. Second—Insufficiency of the evidence. Third—Error in refusing an instruction asked by the defendant.

I. In cases of this character, as we had occasion to say in Aldrich v. Palmer, 24 Cal. 513, the law does not prescribe any fixed or definite rule of damages, but, from necessity, leaves their assessment to the good sense and unbiased judgment of the jury, and hence their verdict will not be disturbed on motion for a new trial, unless the amount is so large as to induce a reasonable person, upon hearing the circumstances, to declare it outrageously excessive, or as to suggest, at the first blush, passion, or prejudice, or corruption on the pai’t of the jury.

The case shows that the injury sustained by the plaintiff, according to the uncontradicted testimony of her physician, was a fracture of the ulna, or large bone of the left arm at the wrist, accompanied by a displacement of the ligatures- of the wrist, causing the radius, or small bone, to drop down so that the knuckle, or prominence, usually seen on the back or outward side of the wrist, now appears upon the front or [592]inward side, and that the radius will never come back to its place, although it may, after a long time, in a measure, become used to its new place; that the fracture was accompanied with violent inflammation and pain, which had not ceased at the time of the trial—nearly seven months after the injury was received—and would not, for months to come; that the wrist will never be as sound as before.

This shows not only a serious and painful injury which prevented the plaintiff, according to her testimony, from doing any work up to the time of the trial, except “ a little light sewing,” and might do so for an indefinite time to come, but it also shows a permanent disfigurement, and a serious and permauent injury. In view of such consequences, we think no reasonable man would pronounce a verdict for two thousand dollars so excessive as to suggest either ■ passion, prejudice, or corruption on the part of the jury.

II. The testimony is claimed to have been insufficient in two particulars only: First, because it does not appear that the plaintiff gave any signal to the Conductor to stop the car. Second, because when asked by the Conductor if she wished to leave the car, she made no answer.

a. The case shows that she was on the point, or in the act of raising her hand to give the signal at the same time a signal was given by another passenger; but whether she gave the signal or not is a matter of no consequence whatever. Her injury did not result from a failure on the part of the Conductor to stop the car, but from his starting it while she was in the act of descending. lie had stopped the car at the signal of Mr. Gunnison, and the desire of the plaintiff to leave the car was sufficiently indicated by her rising and following Mr. Guhnison and wife to the door.