were recoverable, and, surely as a matter of substantial justice, it perhaps should not be recoverable, nevertheless under the cases of Hudson v. Lazarus, 95 U.S.App.D.C. 16, 217 F.2d 344, and Geffen v. Winer, 100 U.S.App.D.C. 286, 244 F.2d 375, the Court is inclined to the view that these items should be deemed allowable. Accordingly, the Court will assume that these are recoverable items. This brings the loss of wages to a sum total of $ 2,152.46. Adding the loss of wages to the medical and hospital bills, approximates a sum total of a little less than $ 4,500. I am going to assume, therefore, as a beginning of this computation, special damages in the sum of $ 4,500.
In order to determine to some degree of approximation the fairness and justness of the balance of the verdict, it seems to the Court that it is necessary to separate the pain and suffering immediately following the accident from the permanent injury and its effects. There is no doubt that the plaintiff suffered excruciating pain at intervals during the first few months following the accident. He was in the hospital for a month, and during that time an operation was performed on his knee. He wore a cast on his right leg for about six weeks, and then a leg brace for five or six weeks more, then crutches, and finally a cane. He had to undergo a series of eighty-eight physiotherapy treatments, which involved considerable pain. After that, these treatments were informally continued at his home.
Pain and suffering cannot be paid for in dollars and cents. Neither is it possible to test what is a fair compensation for pain and suffering by asking how much would one be willing to accept in advance to undergo a certain amount of pain. That is not a fair measure of compensation, because anyone would make a very exhorbitant charge under those circumstances.
The Court also has in mind that when it reduces a verdict of this kind, it should not reduce it to the amount that the Court itself would have awarded, but only to the maximum reasonable amount which could have been awarded by the jury and which would not have been reduced by the Court. In other words, I am going to reduce this verdict, but I am not going to reduce it to the amount which I myself would have awarded as a trier of the facts; but to a somewhat larger amount.
It is my observation that in cases in which there is no permanent injury, juries in this jurisdiction do not make liberal awards for pain and suffering. I think, in this case, for pain and suffering alone, three thousand dollars would be an exceedingly liberal award, and possibly larger than the average jury would have made, judging from my past experience in this District.
When it comes to the permanent injuries, there is no dispute that as a result of this accident, the plaintiff cannot bend his right knee all the way. In other words, there is some limitation of motion in that respect. This injury, however, has not prevented the plaintiff from carrying on his occupation. At about the time of the accident, he changed his employment, and this change involved a raise in his salary. He has continued in that employment and is in it at this time, apparently to the satisfaction of his employers, and evidently is likely to continue in his endeavor. From this standpoint, he has sustained no financial loss.
The evidence does show that he had to forego the possibility of getting a still better position, involving $ 780 a year more salary, because he was told that, with the injury to his knee, he would not be able to pass the physical examination. Whether these negotiations would have eventuated in employment, and how long that employment might have lasted when we consider all the possibilities that might arise, is, of course, in the realm of speculation.
The Court feels that so far as the permanent injury to the knee is concerned, the sum of $ 7,500 would be the maximum reasonable amount, considering all the circumstances, and considering other similar verdicts for similar injuries in this jurisdiction. Were the Court the trier of the facts, it would make a smaller allowance than that. But if the jury had made an allowance of $ 7,500 for the permanent injury, the Court would not have been inclined to disturb it.
Adding the various figures together that I have indicated would bring the sum total to $ 15,000 which the Court deems to be the maximum possible reasonable verdict in this case, and the maximum amount that the Court would not have been inclined to reduce.
In view of these circumstances, the Court will grant the motion for a new trial unless, within ten days, the plaintiff will file a stipulation, agreeing to a reduction of the verdict to $ 15,000.
That amount is, of course, subject to the further reduction under the law of West Virginia, which views any amount paid on account of Workmen's Compensation as partial satisfaction of any judgment for damages. This law of West Virginia is obviously different from the law of the District of Columbia and from the law of many other States. The West Virginia law is set forth in the case of Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 747, 65 S.E.2d 87.
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