
    Joseph Proulx vs. John J. McHale Germaine Proulx vs. John J. McHale
    No. 67882
    No. 67883
    December 7, 1927.
    For plaintiffs: Joseph T. Witherow.
    For defendant: Hinckley, Allen, Til-linghast & Phillips and James G. Connolly.
   CAPOTOSTO, J.

These two actions, brought by husband and wife to recover damages sustained by the wife in an automobile accident, resulted in. a verdict of $8,000 for the wife, Ger-maine Proulx, and a verdict of $2,000 for the husband, Joseph Proulx. The defendant, in asking for a new trial, says that the verdict-is not supported by the evidence and that the damages are excessive.

The plaintiff, Germaine Proulx, claims to have been struck by the defendant’s automobile as she was upon a foot walk on an uncurbed street The defendant maintains that she rushed out into the street directly in the path of his automobile at a time when a collision could not possibly be avoided.

The case presented a clear issue of fact. It was for the jury to say which witnesses or set of witnesses it chose to believe. While the question of the plaintiff’s due care is rather close, there was enough testimony, if believed, to sustain the verdict. This Court cannot say that the jury was not justified in accepting as true testimony which placed the plaintiff in a place of comparative safety when struck by the defendant’s automobile.

The plaintiff claims that as a result of the accident she suffered a severe leg injury' and permanent damage to her nervous system. The testimony clearly establishes the fact that the plaintiff sustained a fracture of the femur. The evidence as to present inability to work, nervous instability, and other resulting ailments, while undoubtedly sufficient for the cold record, failed to carry a positive conviction of sincerity when compared with the appearance and behaviour of the plaintiff in the courtroom. In view of a firm opinion that the resulting disabilities were to some extent exaggerated, the Court considers the sum of $8,000 awarded to the plaintiff, Germaine Proux, as excessive. The award of $2,000 to the husband, Joseph Proulx, while close to the bounds of reasonable liberality, can be supported. As this case is intimately interwoven with the claim of the wife, it should follow the course of the case of Germaine Proulx.

If the plaintiff, Germaine Proulx, within five days from the filing of this rescript remits all of the verdict in excess of $5,600, a new trial is denied, otherwise a new trial is granted on all grounds in both the cases of Germaine Proulx and Joseph Proulx.  