
    The Cleveland Ry. Co. v. Mueller.
    
      (Decided May 21, 1928.)
    
      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    
      Mr. J. De Kaiser and Mr. M. G. Harrison, for defendant in error.
   Sullivan, P. J.

This cause is here on error from the Court of Common Pleas of Cuyahoga county. The action was one for personal injury, wherein a verdict for $4,000 was returned by the jury in favor of Lena Mueller, plaintiff below, half of which amount was remitted by consent of plaintiff but with the exception of counsel for the railway company, and thereupon motion for new trial was overruled and judgment entered.

There are two grounds of error charged. One is that the verdict and judgment are clearly and manifestly against the weight of the evidence, and the other is that the verdict is excessive and appears to have been rendered under the influence of passion and prejudice.

It appears from the record that the plaintiff below, Lena Mueller, was a passenger on an eastbound street car, operated by the defendant, the Cleveland Railway Company, on Quincy Avenue, Cleveland, Ohio, and that on or about February 7, 1926, when near East Sixty-fourth street and Scovill avenue, while plaintiff was seated in one of the seats of the car, a certain other passenger carrying a bundle of tools under Ms arm was thrown suddenly forward when the car started, at which time it is claimed there was an unusual jerk, as a result whereof it is alleged that the man with a bundle of tools fell against the plaintiff’s side and abdomen, and upon her right foot and leg, causing her the injuries for which she recovered.

The question as to whether the jerk of the car was sudden and unusual was a question of fact for the jury, and after a reading of the court’s charge we are satisfied that this question, in all its phases, was submitted to the jury for determination of the fact, upon wMch point the jury found in favor of the plaintiff.

After an examination of the ■ récord, we do not find any situation by which, as a reviewing court, we may deviate from the general rule that a reversal cannot be had if there is credible evidence to support the verdict and judgment, even though there may be a direct conflict in the testimony.

In order to reverse, the reversal must rest upon a matter of law. It cannot be done simply because the reviewing court holds a different view. The jury is the tribunal to determine the facts, and it must not be interfered with, except as a matter of law when the judgment is clearly and manifestly against the weight of the evidence.

We do not find, as above noted, such situation in the record as warrants us in disturbing the verdict of the jury upon this ground, abiding by the following rules:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony. ’ ’ Breese v. State, 12 Ohio St., 146, 80 Am. Dec., 340.
“Where a variety of facts are given in evidence, tending to prove notice to charge an indorser, the court should not set aside the verdict upon mere difference of opinion with the jury.” Remington v. Harrington, 8 Ohio, 507.
“When the evidence is conflicting, a verdict will not be reversed, because the evidence against the verdict is strong.” Higgins v. Drucker, 22 C. C., 112, 12 C. D., 220.
“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.” Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683.

The other assignment of error is that the verdict of $4,000 was excessive, and was occasioned by passion and prejudice.

The injury alleged confined plaintiff to bed for about two weeks, and for a period of about seven weeks she suffered pain and inconvenience because of an injury which she received to one of her anides, which caused it to swell to twice its size.

There seems, however, to be no substantial evidence in the record that seven weeks was the limit.

It is the unanimous judgment of this court that the size of the verdict substantially exceeds the amount reasonably warrantable from the facts of the case. The amount itself leaves an inference that the only explanation for its existence is passion or prejudice on the part of the jury. The amount of the verdict itself may determine this question when there is no other reasonable explanation for the size of the verdict. The fact that the court cut the verdict in two lends color to the inference of passion and prejudice. The apparent readiness with which the remittitur was accepted corroborates the accuracy of this inference.

The passion or prejudice which creates, in whole or in part, a verdict, is not removed because of any remittitur. The tincture is still there, because it shows the state of mind of the jury, and thus bears upon the question whether there was a fair and impartial trial.

Had the jury not been in a state of mind caused by passion or prejudice, it may well be that there would have been no verdict for plaintiff, although there appears to be some credible evidence, as is noted in this opinion, to sustain the verdict.

Undoubtedly the verdict would not have been disturbed if the assignment of error was the weight of the evidence alone. The reason for the excessive verdict being passion or prejudice is an indication that the jury was not in a proper frame of mind-to do exact justice between the parties.

These views are sustained by the following excerpts from the case of Cleveland Worsted Mills Co. v. Coates, 26 C. C. (N. S.), 353, from pages 362 and 363 (30 C. D., 610):

“If the verdict, not as pruned by the court, but as returned by the jury, is in amount so large as by its appearance to justify the conclusion of being reached through passion or prejudice, the imperative duty of the trial court is to set it aside. No substitute for this command can be found by dicker or bargain — no matter between whom — but strict obedience is by statute enjoined. The law of Ohio upon this point is clear, as we think.”
“But before the trial court should have proceeded to grant a new trial on this ground, the verdict must have appeared, the connection with the circumstances of the case and all of them, so large that its rendition by the jury could be accounted for upon no rational footing except that it was induced by passion and prejudice; it must have been apparent, from its amount — still in its relation to the whole case — that it was so induced and brought about. Finding that, the correlative duty of the court to order a new trial would be clear and unquestionable; because in that case the verdict would not be the verdict to which the litigants were entitled — the verdict of an impartial jury — but the verdict of a perverse jury, and hence in law no verdict. In that view it could not be the basis of a lawful judgment. ’ ’

The following paragraph in S. S. Kresge Co. v. Fader, 116 Ohio St., 718, at page 721, 158 N. E., 174, 175, we think is determinative of the law in Ohio:

“In view of the conclusion we have reached, we shall pass without comment all of the evidence in the case pertaining to the extent of the injury, pausing only to say that, when a trial court reaches the conclusion that a verdict returned by a jury in a personal injury case is 33 1/3 per cent, greater than it should be, and to that extent higher than the court can sustain, the case is one calling for the closest scrutiny and consideration by the trial judge on the subject of passion and prejudice on the part of the jury.”

In the consideration of this case, we have in mind the docket entry of the court upon the question of remittitur. It does not state that it was because of passion or prejudice, or that it was not because of passion or prejudice, that the remittitur was made. Therefore, the remittitur was made independent of the claim of passion or prejudice, so far as the docket entry is concerned; but it appearing in the motion for new trial, under the third assignment of error, that the verdict is excessive, appearing to have been rendered under the influence of passion or prejudice, it follows, by inference at least, from the record, that the verdict was reduced to one-half the amount because of passion and prejudice.

The docket entry reads: “June 6, 1927. To Court: The plaintiff having accepted a remittitur of $2,000.00, the motion for a new trial is overruled; to which the defendant excepts. It is therefore considered that the plaintiff recover of the defendant her said damages less the remittitur, and also her costs of this suit. Judgment is rendered against the defendant for the costs herein.”

Holding, as we do, that there are inferences from the record that the verdict is based on passion and prejudice, and therefore excessive, the judgment of the lower court is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Vickery and Levine, JJ., concur.  