Miss. Cent. R. Co. v. Smith , 173 Miss. 507 ( 1934 )

This case has involved serious difficulties as to a proper decision and we have taken a course in that regard commensurate with the difficulties encountered. As indicated in the original opinion, the evidence as a whole is unsatisfactory; but taking all of it as presenting an intelligible setting of the situation and thereupon considering particularly the testimony of the engineer, introduced and vouched for by appellant, that although he was keeping a strict lookout ahead, he did not see the automobile until the locomotive was within sixty feet of the crossing, and this taken in connection with the potent fact that the jury was taken to the scene and made an actual view thereof, we have concluded that, for the reasons stated in the original opinion (154 So. 533), we are not authorized to reverse on the issue of liability.

We have concluded, however, that the amount of the verdict is out of line with the verdicts that have been rendered by juries throughout the state for the last three or four years in cases of personal injury, similar in seriousness to the present case, when taken in connection with the remittiturs ordered in a few cases; and that the verdict is excessive to the extent of four thousand dollars. If the appellee will enter a remuttitur in that amount, the judgment will be affirmed for seven thousand dollars; otherwise, it will be reversed, in so far as it fixes the amount to be recovered, and the cause remanded for trial on the question of the amount of damages only.

Suggestion of error sustained in part, and affirmed with remittitur.