DARNELL et ux. v. KROUSE; DARNELL v. SAME

DARNELL et ux. v. KROUSE. DARNELL v. SAME. (Circuit Court, E. D. Pennsylvania. January 5, 1905.) No. 68. 1. New Trial — Grounds—Excessive Yerdict. A court may modify a verdict in favor of the plaintiff, in an action for a personal injury, as excessive, where it appears from evidence produced in support of the motion for a new trial, with respect to the present condition of plaintiff’s health, that recovery from the effects of the injury has been more rapid and complete than was anticipated by the physicians on whose testimony the verdict was based. At Law. On motion for new trial. Francis Fisher Kane, for plaintiffs. J. Jos. Murphy, for defendants. [MAJORITY — J. B. McPHERSON, District Judge.] J. B. McPHERSON, District Judge. Very little of the testimony that was taken in support of these motions is properly to be described as after discovered evidence, and for that reason most of it must be disregarded altogether. The jury has settled finally the question of liability for the injuries suffered by the respective plaintiffs, and the conflicting testimony was of such a character that I should not be justified in disturbing the verdict, so far as that point is concerned. But there is another point about which I feel more freedom, namely, the size of the verdict in favor of Mrs. Darnell, and the testimony upon this subject, tending to show the present condition of her health, is, I think, relevant and important. As she did not deny it, I cannot avoid drawing the inference that the physicians’ forecast at the trial was too gloomy, and that her recovery has been speedier and apparently more complete than they ventured then to hope. The verdict must certainly have been influenced by the medical opinion, then expressed and not contradicted, that she would probably never recover her health, and would be unfitted for doing her accustomed work as a teacher. As it seems to me, therefore, the award of the jury has now been shown to be too large, and I think that fairness requires it to be reduced. It is therefore ordered that if the plaintiff Mrs. Darnell, on or before January 25th, remits so much of the verdict in her favor as exceeds $2,000, the clerk will make the proper entry refusing the motion for a new trial in No. 67, April sessions, 1904; otherwise the motion will be granted. In No. 68, April sessions, 1904, a new trial is refused.