Central of Georgia Ry. Co. v. White

• Decision Date: 16 November 1911
• Citation: 56 So. 574,175 Ala. 60
• Parties: CENTRAL OF GEORGIA RY. CO. v. WHITE.
• Court: Alabama Supreme Court

56 So. 574

175 Ala. 60

CENTRAL OF GEORGIA RY. CO. v. WHITE.

Supreme Court of Alabama

November 16, 1911

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Annie E. White against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

London & Fitts, for appellant.

Frank S. White & Sons, for appellee.

SOMERVILLE J.

The plaintiff, a passenger, was injured in a train wreck on the defendant's road in May, 1907. In January, 1909, she had verdict and judgment for $16,000 as compensatory damages for her injuries, including mental and physical suffering. The defendant moved for a new trial on the ground that the verdict was excessive in amount, and now appeals from the judgment of the court overruling this motion.

On such an appeal the functions and powers of this court are correctly stated as follows:

"As the question of damages is in such cases a matter of discretion for the jury, the trial court will not set aside a verdict for damages merely because in its opinion the jury gave too much or too little. And, where a trial court has refused to disturb a verdict on account of the amount of the recovery, the appellate court is very reluctant to substitute its judgment for that of the jury and court below. To such an extent is the measure of recovery, where not susceptible of a pecuniary estimate, deemed a matter of discretion for the jury, that the universal rule is that a judgment will not be reversed on this ground alone, unless the amount is so excessive or so grossly inadequate as to be indicative of prejudice, passion, partiality, or corruption on the part of the jury." 8 Am. & Eng Ency. Law (2d Ed.) 628 (cited in Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 So. 501). To the same effect are Watson's Damages in Personal Injury Cases §§ 311, 328, 329, 330; and 4 Sutherland on Damages, § 1256. See, also, National Surety Co. v. Mabry, 139 Ala. 225, 35 So. 698, where a substantially similar test is applied to verdicts involving punitive, as distinguished from compensatory, damages.

The practical application of this rule by appellate courts to verdicts challenged for this alleged vice is a matter of great difficulty as well as delicacy.

As a general guide, we approve the following statement by Mr. Sutherland: "There is no absolute rule to determine whether a verdict awards an excessive amount or not. It has been held that, if the sum allowed is much above or greatly below the average, it is fair to infer, unless the case presents extraordinary features, that partiality, prejudice, or some other improper motive has led the jury estray." 4 Sutherland on Damages, § 1256, p. 3669.

He adds in the same connection: "And if there have been two or more trials of an action, and the evidence has not been materially different as to the extent of the plaintiff's injuries, a large discrepancy between the final and the previous awards will authorize the reversal of a judgment for an amount greatly in excess of that first awarded. But the application of this rule depends upon the fact that the evidence is substantially the same on each trial." In the present case the defendant offered to show the fact of a former verdict for the plaintiff in this case for $10,000. There was no suggestion, however, that the evidence on the two trials was substantially the same, and hence we cannot put the trial court in error for not considering that fact; and, the fact itself not being properly before us, we can give it no weight here.

In arriving at what is a fair average of damages in similar cases, it is evident that the revising tribunal must resort to common knowledge, common experience, and general observation; and must then apply these to the particular case in hand.

The plaintiff, a woman 64 years of age, claims that she suffered great and enduring pain for many months after her injuries were received, and more or less regularly ever afterwards, due, as alleged, to severe concussion and contusion of her spine and pelvis, and resulting specifically in bladder disease, with chronic and permanent incontinence of urine, stiffness of neck, arms, and legs, and general impairment of health and strength, amounting to practical and permanent physical disability. She was confined to her bed, unable to move except slightly, and with torturing pain, for several weeks, and to her room for several months. Formerly able bodied and active, she has not been able since her injuries to attend to her own wants, and locomotion is difficult, painful, and dangerous. The tendency of the evidence offered in her behalf, including the testimony of herself, her daughter, her son-in-law, and her family physician, Dr. Moore, is to support and establish these claims with respect to her suffering and her physical disorders and disabilities; at least, it was open to the jury, in view of all the evidence, to reach conclusions favorable to plaintiff's claims.

For the purposes of this appeal, therefore, we must treat the case as if these injuries and resulting conditions were conclusively established by the evidence and figured in the findings and verdict of the jury; for, if we can reasonably do so, we are bound to attribute the size of the verdict to the effect of the evidence, rather than to passion, prejudice, or other improper mental attitude of the jury.

A large collection of personal injury cases reported in the various states, illustrative of the attitude and practice of juries and courts with respect to the amount of damages to be awarded and allowed as compensation where the injuries are permanent, and the pain and suffering more or less great and enduring, will be found in 4 Sutherland on Damages (3d Ed.) pp. 3670-3687. A study of these cases produces the impression that neither courts nor juries have any very definite notions or standards in dealing with this subject. We collate a few of the cases in which the plaintiffs were women, and where an earning capacity apparently was not considered in the estimation of damages:

"An injury to a woman in the prime of life whose pursuits required all her physical faculties and which permanently disabled her was not excessively compensated for by $3,500. Calder v. Smalley, 66 Iowa, 219, 23 N.W. 638, 55 Am. Rep. 270.

"A verdict for $5,000 for injuries which permanently destroyed the use of a lower limb of a healthy, active woman of 70

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