is capable of either of two inference, it cannot be deemed to support either. The case substitutes the principle that in such an event, it is for the jury to determine which inference to deduce and that the jury has a right to draw either one. The prior cases, to which reference has been made, must be deemed to have been overruled sub silentio. The fact that they are not mentioned in the opinion of Lavender v. Kurn and that the earlier doctrine is not referred to, is immaterial for appellate reports are replete with instances of decisions being overruled sub silentio. Lest it be suggested that cases under the Federal Employers' Liability Act are sui generis and that, therefore, the ruling in Lavender v. Kurn should be limited to actions in that category, it must be observed that there is no logical basis for assigning a different scope of functions to the jury in cases of a single type, than is accorded to it in all other cases. If the jury has a right to select one of two possible inferences that may be deduced from the evidence in actions of one kind, it has a right to do so in all situations.
The view here indicated as to the effect of the decision of the Supreme Court in Lavender v. Kurn, supra, has likewise been adopted in other cases. Thus the Court of Appeals for the Eighth Circuit in an opinion written by Judge Sanborn, in Anglen v. Braniff Airways, 237 F.2d 736, 740, made the following statement:
'In a jury case, where conflicting inferences reasonably can be drawn from evidence, it is the function of the jury to determine what inference shall be drawn.', citing Lavender v. Kurn.
That case involved an ordinary negligence action, which was not governed by the Federal Employers' Liability Act. Judge Sanborn's statement was quoted with approval in a later case, in which the opinion was written by Judge Woodrough, Continental Can Company v. Horton, 8 Cir., 250 F.2d 637, 643, again citing Lavender v. Kurn.
This discussion inevitably leads to the conclusion that it is no longer the rule in the Federal courts that if the evidence is susceptible of two possible inferences, it is not sufficient to establish either. On the contrary, the present doctrine is that if the evidence may lead to either one of two inferences, it is for the jury to determine which inference should be deduced and the jury has a right to draw either one. In the light of these considerations, the court is of the opinion that the issue of negligence was correctly submitted to the jury and that the latter was justified in finding that the plaintiff's injuries were caused by the negligence of defendant's employee.
In the alternative, the defendant moves for a new trial on the ground that the amount of the verdict was excessive. In an action involving personal injuries in which the damages are necessarily unliquidated, the amount to be awarded is purely within the sound judgment of the jury, subject necessarily to the power of the trial judge to order a new trial in case the verdict is excessive, or to deny a motion for a new trial on condition that the plaintiff agree to a remittitur in a specified sum. What constitutes an excessive verdict is not to be tested by the sum that the judge would have awarded had he been the trier of the facts. That he might have allowed an amount smaller than was granted by the jury, is not in itself sufficient to brand the verdict as excessive. There must manifestly be a considerable range within which the jury may operate. It is only if the amount of damages assessed by the jury is beyond the bounds of reason or, as is sometimes said, shocks the conscience, that it may be deemed excessive and a new trial granted on that ground. Tested in this manner the verdict in the instant case cannot be deemed excessive.
The plaintiff is a lady over sixty years of age. As a result of the fall she sustained an injury to her back. Her medical and hospital expenses aggregated over $ 400. She had been eking out a modest living by doing laundry work in her own home on a part time basis and thereby earned on the average of $ 50 a month. She claimed that her back injury prevented her from continuing these activities. The medical testimony was to the effect that she had a congenital abnormality in her back that had never caused her any pain or distress, but that was aggravated by the accident and resulted in severe pain which has continued intermittently as late as the time of the trial. The medical opinion was to the effect that this condition would continue indefinitely. In addition she sustained an injury to her right knee and also became subject to headaches. It was proper to make due allowance for pain and suffering and for the inability to carry on her prior occupation. Under the circumstances, the Court is unable to conclude that the amount of the verdict was beyond the realm of reason. It cannot be deemed excessive in that sense.
The motions are denied.
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