has a grade of 1 inch to 10 inches, plus a peculiar double slope with a dip or hollow in the central part.
Counsel contend the damages awarded by the jury are excessive in view of the fact that Mrs. Hilleary, the plaintiff, was 85 years of age at the time the accident occurred and is now 88. They contend that her life expectancy is 'almost nil' or 'not more than a year or so;' that the damages proved were at most $ 3,700; that there is no indication of suffering or disability or permanent injury of any consequence; that any permanency of injury is due more to old age than to the accident; that plaintiff had no earning power; and that the verdict is one of sympathy, based on mere speculation.
No evidence of plaintiff's life expectancy was introduced by either the plaintiff or the defendants. The jury had the benefit of observing the plaintiff at the counsel table throughout the trial and hearing her testify. It is reasonable to believe that they concluded that the plaintiff has a personal life expectancy of some years. Save for the hip injury and its consequences and deafness, she appeared to be in unusually good health and spirits for one of her age. The uncontradicted testimony was that before the accident she was able to render light household duties and did so, whereas since the injury she has needed assistance even in tending to her own needs, and must use a cane. The plaintiff testified that she was confined in a hospital for three weeks after the accident; that during the first week she experienced extreme pain, but thereafter had a very comfortable time and the pain settled down to an ache. She now suffers dull pain almost all of the time, which is worse in damp weather and more severe in the morning than at night. Her leg swells every day, and she requires assistance in rising in the morning. Plaintiff appeared to maintain a cheerful attitude, minimizing rather than magnifying her present condition. It cannot be said that the jury had no evidence of disability, permanent injury, or pain and suffering. It is common knowledge that a broken hip is a major injury, and that is an old person it frequently hastens deterioration which otherwise would not have occurred until later.
It is the peculiar function of the jury to determine the amount of recoverable damages by their verdict. 'In no case is it permissible for the court to substitute itself for the jury, and compel a compliance on the part of the latter with its own view of the facts in evidence, as the standard and measure of that justice which the jury itself is the appointed constitutional tribunal to award,' unless the verdict is so excessive or outrageous with reference to all the circumstances of the case as to demonstrate that the jury have acted against the rules of law, or have suffered their passions, their prejudices, or their perverse disregard of justice to mislead them.
In view of the nature of the plaintiff's injury and in the light of all the testimony in this case, the court cannot say that the verdict is so excessive as to be beyond reason and to shock the conscience.
Counsel for the defendants contend that the verdict should not have been received, on the ground that the first juror polled showed that she was confused and that the verdict was not unanimous.
When the jury returned its verdict, the foreman announced that the jury found against both defendants in the sum of $ 22,000. Defense counsel requested that the jury be polled. The first juror, when polled, stated her verdict was 'for the plaintiff, and twenty thousand dollars.' There was an involuntary ripple of comment through the jury, the first juror looked confused and turned to the juror standing next to her, who said something to her which was inaudible to the court. Counsel for the defendant Earle stated to the court that the jurors should not discuss the verdict among themselves, at about which time the jury were silenced. The clerk then began the poll again, starting with the same juror, who clearly stated her finding was for the plaintiff against the two defendants in the sum of twenty-two thousand dollars. The poll was then concluded without any further discrepancy. The only juror who appeared to be at all confused as to the amount of the verdict was the first juror; and her first misstatement may be construed as a slip of the tongue in view of the fact that she unhesitatingly restated her verdict to conform with the verdict as given by the foreman.
This was obviously not a case of a dissenting juror, as in Bruce v. Chestnut Farms-Chevy Chase Dairy, 75 U.S. App.D.C. 192, 126 F.2d 224, but rather an embarrassed or nervous juror, who, when she unexpectedly heard her name called first on the poll, was stated and answered in confusion, stating a verdict which she did not intend and later corrected on being questioned carefully by the court. Under the circumstances, the misstatement did not indicate that the verdict was not unanimous or that there was need for further deliberation.
For the foregoing reasons, the defendants' motions for judgment notwithstanding the verdict or for a new trial are denied.