Tomljanovich v. Victor American Fuel Co.

• Citation: 227 F. 951
• Decision Date: 04 December 1915
• Docket Number: 350.
• Parties: TOMLJANOVICH v. VICTOR AMERICAN FUEL CO.
• Court: U.S. District Court — District of Maine

227 F. 951

TOMLJANOVICH v. VICTOR AMERICAN FUEL CO.

No. 350.

United States District Court, D. Maine.

December 4, 1915

A. T Hannett, of Gallup, N.M., and Geo. C. Wheeler, of Portland Me., for plaintiff.

Caldwell Yeaman, of Denver, Colo., and Frederick W. Hinckley, of Portland, Me., for defendant.

HALE District Judge.

This case now comes before the court upon defendant's motion for a new trial, after a verdict for the plaintiff for the sum of $19,100. The defendant alleges that the verdict is against the weight of evidence, and that damages are excessive

The plaintiff was a coal miner in the defendant's mine in New Mexico. He was 19 years old at the time of the injury. He was a healthy, able-bodied young man in normal physical condition. The learned counsel for the defendant urges with much earnestness that the verdict is clearly against the weight of evidence and should be set aside. Upon all the issues on which counsel have presented their arguments for and against setting aside the verdict, I find there is conflicting testimony. I cannot say that the verdict was so clearly against the weight of evidence that in view of all the conflicting testimony I ought to set the verdict aside. Within the rules of law, and within the scope of their duties, I think the jury had a right to find a verdict for the plaintiff.

The vital question before the court is: Were the damages excessive? The court should not set aside a verdict, unless it finds that the judgment of the jury was unduly affected by sympathy, passion, or prejudice, and that a verdict resulted which was clearly excessive in view of all the evidence. In a case where it appears that sympathy, passion, or prejudice has affected the result, a federal court sometimes orders that the verdict be set aside and a new trial granted, unless the plaintiff allows judgment to be entered for same smaller amount, for which, in the opinion of the court, the verdict may be sustained. It then becomes the duty of the court to permit a verdict for the largest amount which the testimony will support. Southern Railway v. Bennett, 233 U.S 80, 34 Sup.Ct. 566, 58 L.Ed. 860; Occidental Consol. Min Co. v. Comstock Tunnel Co. (C.C.) 125 F. 244; Yurkonis v. Delaware, L. & W.R. Co. (D.C.) 213 F. 537, 538.

In the case at bar the evidence showed that certain parts of the pelvic girdle had been broken, and parts thereof are still out of position; that there is a dislocation of bone in the region of the sacrum, a considerable area of anaesthesia in one of the plaintiff's legs and atrophy in one of his legs; and that the functional activities of his bladder are considerably impaired, subjecting him to...