301 Mass. 328

September 22, 1938 - October 26, 1938

Hampden County


No abuse of discretion was shown in the denial of a motion by the defendant for a new trial of an action for personal injuries grounded on alleged "excessive and unconscionable" damages.

TORT. Writ in the District Court of Springfield dated January 12, 1937.

The defendant filed a motion for a new trial after a finding by Spooner, J., for the plaintiff in the sum of $5,660, which the defendant contended was "excessive and unconscionable." The denial of the motion was reported to the Appellate Division for the Western District, the report stating that the judge found "that as a result of the fracture of the ulna suffered by the plaintiff, the latter was permanently injured. He has been unable to return to his former well paid employment, and it is impossible to say whether he ever will. He may recover three-fourths use of his right arm, but will always suffer some limitation of motion which makes his ability to do his former heavy work as an artesian well digger doubtful at any time in the future." The defendant contended that the denial of the motion was an abuse of judicial discretion. The report was ordered dismissed. The defendant appealed.

T. F. Moriarty, for the defendant, submitted a brief.

J. H. Madden, for the plaintiff.

BY THE COURT. The record shows no abuse of discretion or other error of law in denying the motion for a new trial. Ogden v. Aspinwall, 220 Mass. 100, 105. Davis v. Boston Elevated Railway, 235 Mass. 482, 496-497, 502. Gallagher v. Boston Elevated Railway, 259 Mass. 33. Mantho v. Nelson, 285 Mass. 156, 158.

Order dismissing report affirmed with double costs.