McKay v. New England Dredging Co.

• Decision Date: 20 October 1899
• Citation: 93 Me. 201,44 A. 614
• Parties: McKAY v. NEW ENGLAND DREDGING CO.
• Court: Maine Supreme Court

44 A. 614

93 Me. 201

McKAY

v. NEW ENGLAND DREDGING CO.

Supreme Judicial Court of Maine.

Oct. 20, 1899.

(Official.)

On motion from supreme judicial court, Knox county.

Action by John McKay against the New England Dredging Company. Judgment for plaintiff. Motion by defendant for new trial. New trial ordered for assessment of damages.

This was the second trial of an action brought by an administrator to recover damages for the loss of the life of his intestate by reason of the negligence of the defendant corporation, and in which the jury returned a verdict of $1,990 for the plaintiff. The action is brought under the provisions of chapter 124 of the statute of 1891, for the benefit of the father and mother, they being the sole heirs of the intestate.

At the trial of the first action the jury returned a verdict of $2,000, which was set aside on account of the damages being excessive, the law court having ordered a new trial unless the plaintiff would remit all of the verdict above $750. The material facts will be found in the opinion of the court in the former report of the case in McKay v. Dredging Co., 92 Me. 454, 43 Atl. 29.

Argued before EMERY, HASKELL, WISWELL, STROUT, and SAVAGE, JJ.

D. N. Mortland and M. A. Johnson, for plaintiff.

Clarence Hale, Joseph E. Moore, A. P. Belcher, and Frederick Hale, for defendant.

EMERY, J. When this case was first before the law court, as reported in 92 Me. 454, 43 Atl. 29, we declared that the finding of the jury upon the question of the defendant's liability for the death of the plaintiff's intestate was not made to appear so unmistakably wrong as to require us to set it aside. We did set the verdict aside, however, because of the excessive damages assessed by the jury.

A second jury has assessed the damages at nearly the same sum that was assessed by the first jury, although the evidence upon the question of damages at the second trial did not preponderate any more for the plaintiff. We think this question must have been more or less obscured by the smoke of the battle over the question of liability which the defendant again raised, and that the jury thus lost sight of the rules governing the assessment of damages.

The verdict as to the question of liability should stand, and judgment be eventually rendered thereon for the plaintiff. The assessment of damages, however, must be set aside, and damages be assessed anew by a jury unaffected with any contention over the question of liability. This the...