335 Mass. 172

November 7, 1956 - December 10, 1956

Suffolk County


In an action by a woman for injuries to her knee and leg, a denial of a motion by the defendant for a new trial on the ground that an award of $14,000 damages was excessive could not be said to be an abuse of discretion in view of evidence presented at the trial of a compressed fracture, of pain and discomfort suffered, of casts applied, of physiotherapy and hospital and medical treatments given, and of the plaintiff's loss of about four and a half months of work as a clerk-typist.

TORT. Writ in the Superior Court dated September 24, 1952.

The action was tried before Donahue, J.

James C. Roy, for the defendant.

Thomas B. Shea, for the plaintiff.

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CUTTER, J. This is an action of tort to recover for injuries sustained by the plaintiff when alighting from a bus of the defendant. There was a verdict for the plaintiff for $14,000. The defendant filed a motion for a new trial on the grounds that the verdict was against the evidence and the weight of the evidence and that the damages were excessive. The motion was denied and the defendant duly excepted. The case is here on the defendant's bill of exceptions.

At the argument and in its brief, the defendant did not greatly press its contention that the trial judge abused his discretion in denying a new trial on the issue of liability. The evidence on the issue of the defendant's negligence (which it will serve no useful purpose to review here) as disclosed by the record does not seem convincing. However, we clearly cannot say that, on that issue, the trial judge, in denying the motion for a new trial, exceeded the limits of his discretion.

A more serious question is presented by the contention that the damages awarded were excessive. The evidence most favorable to the plaintiff disclosed that the plaintiff on May 29, 1952, suffered the injuries here involved. On that day at the outpatient department of the Brighton Marine Hospital she complained of pain in the left knee and upper leg. X-rays showed a compressed fracture of the left lateral plateau and a long leg cast was applied. Between May 29 and June 2, she was "in miserable pain" and until June 15 she needed a wheel chair. Thereafter she used a crutch for a period. She had difficulty sleeping. Adjustments of the cast were made throughout June and July, 1952, and she had two successive changes of cast. She was given physiotherapy on twenty-four days in July, August and September. In October, 1952, a one-quarter inch enlargement of the joint over the patella was noted and she still walked with a slight limp, which then was getting less all the time. She had pain when going upstairs, which recurred occasionally. She had further treatment in November. Her last hospital visit was on March 16, 1953, when

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examination revealed full range of motion, no pain and intact ligaments. At the time of the trial in December, 1955, the plaintiff said that her leg "still swells up when I put my weight on it any length of time" and on rainy or damp days. On occasion, she had to wear bandages or elastic supports for a few days. She also was treated by a physician (who was not called as a witness) occasionally in her home or in his office.

The plaintiff returned to work in the last week of September, 1952, working part time for three weeks and thereafter full time. She lost three weeks of work in March, 1953, because she "had a terrific pressure on" her left foot. Her annual salary as a clerk-typist at the Army Base where she worked was $2,950. In all, she lost about four and a half months of work. There was no evidence of the cost of her hospital and medical treatment.

Giving weight to every permissible inference from the evidence already summarized, the verdict, on the record before us, seems large. It was the duty of the trial judge to set the verdict aside if he found it "greatly disproportionate to the injury proved" after considering fairly and in an impartial and objective manner the applicable standards of reasonableness under the circumstances, or if in his sound judgment a miscarriage of justice would otherwise result. See Bartley v. Phillips, 317 Mass. 35, 41-42.

If the trial judge had set this verdict aside as disproportionately high, this court would have felt, on this record, that he was well justified in doing so. It is quite another thing, however, for this court to say that a judge has abused his discretion in refusing to set aside such a verdict. "In this court as an appellate tribunal an award of damages must stand unless to . . . permit it to stand was an abuse of discretion . . . amounting to an error of law," which our decisions for this purpose have defined as judicial action that "no conscientious judge, acting intelligently, could honestly have taken." See cases cited in Bartley v. Phillips, supra, at pages 43-44. We cannot say that there was this type of error on the part of the trial judge who heard and saw the

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witnesses. Kinnear v. General Mills, Inc. 308 Mass. 344, 349. Giblin v. Lincoln Park Amusement Co. 318 Mass. 781. See Growers Outlet, Inc. v. Stone, 333 Mass. 437, 444.

Exceptions overruled.