car was loaded to its full capacity, or was behind time, and the motorman believed that he was justified in not stopping; but as that fact was known to him, and could not well have been known to those driving vehicles westward across the street, prudence and a proper regard for their safety and property required that the motorman should either stop or so reduce the speed of his car as to permit vehicles to cross the street unharmed.
'We are of the opinion that as a matter of law contributory negligence cannot be deduced from the facts proven by the plaintiff, and that they fully warrant the conclusion that the defendant was negligent.'
At best the charge to the jury in the case at bar was more favorable to the defendants than that to which they were strictly entitled, because on the authority of the George case, the Court might well have instructed the jury that as a matter of law the plaintiff could not be deemed guilty of contributory negligence under the circumstances. Instead, the Court left the question of contributory negligence to the jury.
The Court also submitted the case to the jury on the doctrine of the last clear chance. Obviously, if the plaintiff's version of the accident was true, this was a proper case for the application of that rule. Moreover, the Court of Appeals in this case, on an appeal from the judgment rendered at the first trial, held that it was error to refuse to charge the jury concerning the doctrine of the last clear chance.
Counsel for the defendant further assigns as error the fact that the verdict was returned while he was absent from the courtroom. No doubt counsel had a right to be present at the return of the verdict, but by absenting himself from the courtroom he waived his rights in that respect. Were the rule otherwise, trial courts might find themselves in difficulty when the jury is ready to report, but counsel have disappeared, as unfortunately at times happens. In this case the Court endeavored to have counsel located and waited ten minutes for that purpose. In any event, the defendants were manifestly not prejudiced by counsel's absence from the courtroom. There is no basis for the technicality now advanced.
The only other question that requires discussion is the amount of damages. The plaintiff sustained a leg injury, as a result of which he suffered considerable pain and distress for several months. He seems to have achieved a good recovery, however, because he is now on active duty as an officer in the United States Air Force. His functions include flying of airplanes and he receives flying pay.
It was stipulated that the pecuniary damages sustained by the plaintiff, which comprehend hospital and medical expenses, and the like, loss of income, and damages to his motorcycle, aggregate the sum of $ 1,047. The Court is of the opinion that the verdict is excessive and should be reduced to $ 4,000.
Motion for judgment notwithstanding verdict is denied. Motion for a new trial is granted unless the plaintiff stipulates to a reduction of the verdict from $ 5,000 to $ 4,000.