City of East Chicago v. Gilbert
| Decision Date | 25 June 1915 |
| Docket Number | No. 8480.,8480. |
| Citation | 109 N.E. 404,59 Ind.App. 613 |
| Parties | CITY OF EAST CHICAGO v. GILBERT. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.
On petition for rehearing. Petition granted on condition of filing a remittitur. For former opinion, see 108 N. E. 29.
A. Attenheimer, of East Chicago, and Lincoln V. Cravens, of Hammond, for appellant. Gavit & Hall, of Whiting, and W. B. Van Horne, of Indiana Harbor, for appellee.
[1] Appellant has filed a petition for a rehearing, urging, among other things, that the damages assessed by the jury are excessive. This point was duly presented by appellant in its original brief, and was considered by the court. As a result of a careful re-examination of the case, we have concluded that the damages assessed are excessive within the spirit of the rule that governs in such cases in this court. It follows that the petition for a rehearing should be granted. In our judgment, however, while such a conclusion affords a basis for an unconditional reversal, it does not necessitate such a disposition of the appeal. It has long been the practice, where the recovery is found to be excessive, in cases presenting a definite standard by which the proper amount may be estimated with reasonable accuracy for trial courts and courts of appellate jurisdiction to permit the prevailing party to remit with a new trial or a reversal as the alternative. Fairbanks et al. v. Warrum, 104 N. E. 983, and authorities cited.
[2] Moreover, in cases such as this, where there is no definite standard by which to measure the damages, and the trial court in considering a motion for a new trial, which contains an assignment of excessive damages as grounds, finds such assignment to be true, it has become an established rule that the trial court may permit the successful party to remit the excess or grant a new trial if he fails to elect to do so. Tucker v. Hyatt, 151 Ind. 332, 51 N. E. 469, 44 L. R. A. 129;Cleveland, etc., R. Co. v. Beckett, 11 Ind. App. 547, 39 N. E. 429;Evansville, etc., R. Co. v. Broermann, 40 Ind. App. 47, 80 N. E. 972. That a like rule prevails in a number of jurisdictions, see note to Tunnel, etc., Co. v. Cooper, 39 L. R. A. (N. S.) 1064.
[3][4] The action of a trial court in passing on a motion for a new trial containing an assignment of excessive damages is reviewable by the courts of appellate jurisdiction in this state, and such courts are authorized to reverse and direct a new trial in a proper case where the damages assessed are found on appeal to be excessive. As a practical proposition, the power to determine that damages assessed are excessive carries with it necessarily the implied power to determine what amount of damages would not be excessive. That is, the rule that trial courts may permit the prevailing party to...
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...of contributory negligence as a matter of law? We think not. City of East Chicago v. Gilbert, 1915, 59 Ind.App. 613, 108 N.E. 29, 34, 109 N.E. 404, quotes with approval the following from Pyke v. Jamestown, 1906, 15 N.D. 137, 107 N.W. 359: "Where a traveler--'is injured as a consequence of ......
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