The opinion of the court was delivered by: Juergens, District Judge.
Plaintiff filed her amended complaint charging the defendant
with willful and wanton acts or omissions committed with a
conscious indifference to surrounding circumstances and
conditions by so driving his automobile, wherein the plaintiff
was a passenger, that it left the highway, turned over several
times in which the plaintiff was injured. She asked for $20,000
and costs of suit.
The cause was tried to a jury, which under the instructions of
the court retired to consider their verdict and did return a
verdict for the plaintiff in the sum of $440.
The plaintiff filed her motion for a new trial on the issue of
damages and limited to that issue alone.
The court's authority to consider this motion is found in Rule
59 of the Federal Rules of Civil Procedure, 28 U.S.C.A. which
provides as follows:
"(a) Grounds. A new trial may be granted to all or
any of the parties and on all or part of the issues
(1) in an action in which there has been a trial by
jury, for any of the reasons for which new trials
have heretofore been granted in actions at law in the
courts of the United States; * * *."
In cases of this kind where the question of willful and wanton
misconduct and the question of willful and wanton misconduct on
the part of the defendant are involved, where the jury has
returned its verdict, and one party files a motion for a new
trial limited solely to the issue and question of damages the
court should proceed with caution with a careful regard for the
rights of both parties and only in those cases where it is plain
that the error, if any, which has crept into one element of the
verdict did not in any way affect the determination of any other
issue should the court grant the motion. Thompson v. Camp, 6
Cir., 167 F.2d 733.
The plaintiff in her argument states, "The amount of their
verdict (the jury's) indicates that they misunderstood the
damages portion of the case." Also, "The jury may have
misunderstood the court's ruling in requiring plaintiff's counsel
to withdraw the blackboard and in directing the jury to disregard
the figures they may have seen on it." The court did not
"require" plaintiff's counsel to withdraw the blackboard, but the
court did advise plaintiff's counsel that there were figures on
the blackboard (which were on the blackboard when it was brought
into the courtroom) which were not in evidence and that if these
figures were shown to the jury that, in the court's opinion,
would constitute reversible error. Plaintiff's counsel then
voluntarily withdrew the blackboard. In the court's opinion, the
jury was intelligent, they saw the witnesses, heard their
testimony, they knew what they were doing, and they did what they
wanted to do. The court is of the opinion that they were not too
far wrong. The court is also of the opinion that there was some
doubt as to the liability but that perhaps a little sympathy or
emotion entered into this case to the effect that the jury wanted
to give the plaintiff some money with which to pay a portion of
her doctor and hospital bills, yet they felt that perhaps she
herself was at fault in getting into the automobile of her
brother when she knew that he had been drinking because she
smelled "liquor on his breath" and "he was floundering around as
we left the Legion Hall" and "he stumbled once going down the
Legion steps." The defendant, when called as a witness, without
any hesitation and very willingly testified that he was driving
90 miles an hour and "drinking very heavy." The court has
reviewed his trial notes, he heard the testimony, saw the
witnesses, noted the manner in which they testified and their
demeanor while testifying and feels that it would be grossly
unfair in this particular case to submit to a "cold" jury the
question of damages only when they would hear no portion of the
evidence pertaining to the liability. The new jury would hear the
testimony only as to the injuries of the plaintiff, as to the
amount of money she expended in trying to be cured of her
injuries, and the permanent injuries which she suffered as a
result of the accident. They would not have the benefit of the
testimony as to the drinking of the defendant, his readiness and
willingness to admit it, see the demeanor of the respective
parties on the witness stand, observe their conduct, and know of
the relationship between the parties.
The court is of the opinion that the verdict of the jury should
not be disturbed.
Therefore, the plaintiff's motion for a new trial limited to
the issue of damages only will be denied. It is so ordered.
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