
    JAMES S. RAFFERTY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF HENRY L. WILSON, DECEASED, PLAINTIFF, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY; ARTHUR THOMPSON SHIPLEY, DEFENDANTS. JAMES J. CURRAN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF FREDERICK G. FLEMING, DECEASED, PAINTIFF, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, AND ARTHUR THOMPSON SHIPLEY, DEFENDANTS.
    Decided December 4, 1934.
    For the plaintiffs, John J. Raferly and Philip Blacker.
    
    For the defendant, Henry H. Pryling.
    
   Cleary, S. C. C.

This is the defendants’ rule to show cause why two verdicts rendered in favor of the plaintiffs and against the defendants should not be set aside on the grounds that the verdicts returned by the jury are illegal.

The cases were tried at the Middlesex Circuit, and involved the deaths of two people. The suits were started separately, but for convenience and upon consent of all the parties, the eases were tried together. In each case, there were two defendants, one, the master and the other the servant. The jury returned a verdict in favor of the plaintiff in each case and assessed the damages in one case at twenty thousand dollars ($20,000) against the master, the Public Service Interstate Transportation Company, and one thousand dollars ($1,000) against the defendant driver, Arthur Thompson Shipley. In the other ease the verdict was twelve thousand dollars against the defendant the Public Service Interstate Transportation company, and one thousand dollars ($1,000) against the defendant driver, Arthur Thompson Shipley.

These verdicts are both attacked on the grounds above stated, and the court is asked to set the verdicts aside. The contention of the plaintiff in each case is that although it is admitted that the verdicts, as far as the apportionment of damages is concerned, are illegal, that as far as the question of liability is concerned, the verdicts should stand, and that the rule, if allowed, should bo limited to damages only.

In support of this contention, many cases are cited showing that the trial court, on a rule, may limit the new trial to damages only. With this contention, there can be no quarrel as an academic question. The difficulty is in the appli cation of it to a given set of facts. If, in any given case, the damages returned are attacked on the ground of either inadequacy, or exeessiveness, the usual question involved is one of mistake, with, in some cases, the added question of passion, or prejudice. If it is merely a question of mistake, the court will correct this, either by an adjustment of the amount, or a new trial as to damages only. If, in a given ease, the verdicts seem to be the result of passion or prejudice, while the court may exercise its discretion and limit the new trial to damages only, I do not approve of such action. It seems to me to be inconsistent to say that a verdict rendered by a jury, a part of which is the result of passion or prejudice, should be allowed to stand in part, and set aside in part. It does not seem to me that one can consistently say that a jury allowing itself to be influenced by such motives, could properly pass upon any phase of any given case. This seems to mo to be more evident where the question involved is that of the legality of the verdict, which is the question involved in this case. Here the jury, after being instructed by the court upon two separate occasions, arbitrarily and illegally assumes to apportion the damages between two defendants, and in so doing, must have arbitrarily attempted to apportion Ihe degrees of negligence. This, of course, they cannot do, nor can the courts countenance any such attempt by a jury to do so.

The question involved here is not limited to the damages only, to be judged only as to inadequacy, or excessiveness; it involves the question of legality, and an illegal verdict returned by a jury under such circumstances as prevailed in this case, cannot be sustained in any of its parts. This necessarily leads to the conclusion that the rule to show cause should be made absolute, and that a new trial be granted both as to liability, and damages.

The rule will be made absolute.  