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Moore v. Public Service Coordinated Transport

October 11, 1951


McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.


This appeal by defendant Public Service Coordinated Transport is addressed only to the alleged excessiveness of a verdict in the amount of $63,300 rendered for plaintiff by the jury at the trial of this action in Essex County Court. The trial court refused upon defendant's motion to set aside the verdict.

Damages chargeable to a wrongdoer are limited to those injuries and losses which are shown to be the natural and proximate effects of his wrongful act. Wiley v. West Jersey R.R. Co. , 44 N.J.L. 247 (Sup. Ct. 1882); Smith v. Public Service Corporation , 78 N.J.L. 478 (E. & A. 1910); Schlenger v. Weinberg , 107 N.J.L. 130 (E. & A. 1930); Woschenko v. C. Schmidt & Sons , 2 N.J. 269 (1949).

Ordinarily, however, the determination of those injurious results which are natural and proximate, as distinguished from those unrelated and remote, is exclusively the function of the jury. Too, having identified from the believable evidence such natural and proximate consequences, the admeasurement of the amount of pecuniary compensation is, within reasonable limits and instructions, assigned to the judgment and sound discretion of the jury. Unless there are applicable statutory standards, the law does not assume that a particular bodily injury calls for a definite amount of compensation. Here again the amount to be awarded is therefore primarily for the jury to estimate in view of the facts and circumstances of each particular case. 15 Am. Jur. Damages, p. 479, sec. 71; p. 624, sec. 207.

When on appeal we are asked to nullify a verdict as excessive after denial of that relief by the trial court, we are guided by the criterion that, giving due regard to the action of the trial court and its opportunity and that of the jury to pass upon the credibility of the witnesses, the judgment will not be disturbed unless it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. Rule 1:2-20, as amended; Rule 4:2-6; Hodes v. Dunsky , 15 N.J. Super. 27 (App. Div. 1951). The

mere fact that the award of damages may seem to the court to be somewhat immoderate and excessive, while a circumstance to be considered, does not conclusively indicate that the verdict was the product of mistake, partiality, prejudice or passion. Gee v. Moss , 108 N.J.L. 160 (E. & A. 1931); Bowen v. Healy's, Inc. , 16 N.J. Misc. 113 (Cir. Ct. 1938). "The appellate tribunal cannot invade the constitutional office of the jury; it may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury." Hager v. Weber , 7 N.J. 201, 210 (1951). We, like the trial court, may upset the judgment only when "we find the verdict so excessive as irresistibly to give rise to the inference of mistake, passion, prejudice or partiality, and by that standard to be palpably against the weight of the evidence," Ibid , 213, and should interfere with the verdict on the mere ground of excessive damages with reluctance, and never except in a clear case. Salvato v. New Jersey Asphalt & Paving Co. , 135 N.J.L. 185 (E. & A. 1947).

The following quotation from the opinion in the early case of Somerville and Easton Railroad Co. ads. Doughty , 22 N.J.L. 495, 497 (Sup. Ct. 1850) continues to be pertinent:

"There is no evidence of any misbehavior on the part of the jury, or that they did not attentively listen to the testimony of witnesses and the arguments of counsel during a protracted trial; nor is there any proof of bias, or passion, or prejudice, in their minds, unless it is found in their verdict. This court has the power to set aside this verdict; but we will not exercise that power, unless we are clearly satisfied that it is wrong, exorbitant, and oppressive, and so much so as to strike the mind of every reasonable man, at once, that the jury, from some cause, have done the defendants gross injustice. We cannot exercise this power rudely because we may think the verdict too high; we cannot convert ourselves into a tribunal of fact; the law has not invested us with that power, * * *."

We allude to these elementary observations only to re-emphasize that the power of the court to set aside a verdict is essentially remedial in character and the permissible purpose

of its exercise is not to substitute our judgment for that of the jury and thus to supplant its appropriate function.

Plaintiff on May 2, 1949, was a passenger, seated facing forward, in a bus of Ellmas Bus Co., which, while stopped discharging passengers near the Pennsylvania Railroad station in Newark, was struck from the rear by a bus of defendant. The impact caused plaintiff first to be "pitched forward" and then to be "banged back" against the seat. The motion, "a whip lash snapping," produced a compression fracture and dislocation of plaintiff's third cervical vertebra. The orthopedic surgeon, Dr. Flanagan, a specialist in this branch of medicine since 1934, described the seriousness of the condition as "extremely rare," "I believe, including all the serious neck injuries that I have treated during ...

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