Marin v. Silva , 156 Conn. 321 ( 1968 )

Alcorn, J.

This action was brought by the operator of a motorcycle and his passenger against both the owner and the operator of an automobile which collided with the motorcycle. The named plaintiff was injured when she was thrown from the motorcycle on which she was the passenger. A jury awarded her $3000 in damages, and the plaintiffs moved, under § 52-228b of the General Statutes, to set aside the verdict on the ground that it was inadequate. The court set the verdict aside and ordered a new trial, limited to the question of damages, unless the parties accepted an addition to the verdict for the named plaintiff in the amount of $2700. The defendants have appealed. No issue is raised over the verdict in the defendants’ favor against the plaintiff operator of the motorcycle.

The defendants’ claims are, in substance, that the court should not have set the verdict aside as inadequate, that the court invaded the defendants’ right to a jury trial by ordering the acceptance of an additional amount as an alternative to a new trial limited to the issue of damages, and that General Statutes § 52-228b violates the right to a trial by jury guaranteed by article first, § 19, of the constitution of Connecticut.

We conclude that the first claim of the defendants, which they assert to be their principal one, is conclusive of the appeal, and we express no opinion concerning the form or substance of the order of the trial court.

The question presented by the first claim of error is whether the court abused its discretion in setting aside the verdict. Hook v. Dubuque, 153 Conn. 113, 114, 214 A.2d 376; Prosser v. Richman, 133 Conn. 253, 256, 50 A.2d 85. We need not restate the considerations underlying that question which are so clearly set forth in Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596. The ultimate test is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. Hook v. Dubuque, supra, 115; Sheiman v. Sheiman, 143 Conn. 222, 223, 121 A.2d 285. There is no claim that any incident occurred during the trial to influence the jury against the named plaintiff. Lupak v. Karalekas, 147 Conn. 432, 435, 162 A.2d 180.

Although great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury. Burns v. Metropolitan Distributors, 130 Conn. 226, 228, 33 A.2d 131.

The collision in which the named plaintiff, hereinafter called the plaintiff, was injured occurred on August 24, 1961. She was thrown from the rear seat of the motorcycle, fractured her left lower leg and ankle and sustained multiple abrasions, scratches and a cut on her right thigh which left a scar. All injuries healed normally and well, but the plaintiff claimed, at the trial in November, 1966, still to have some discomfort from excessive walking or climbing stairs which was accounted a 10 percent permanent partial disability of the lower left leg. She was hospitalized for eleven days, her left leg was in a cast for three months, and she used crutches for about five months. At the time of her injury she was about twenty years old and was about four and one-half months pregnant. The accident did not affect her pregnancy or the child who was born in January, 1962.

The court’s memorandum of decision indicates that it concluded that the jury had found the plaintiff’s hospital and medical bills to be about $750 and her loss of income from employment to be about $450. Although there was evidence of these amounts and no serious controversy over the hospital and medical expense, there was a reasonable basis for the jury to conclude that there was no loss of earning capacity as a result of the plaintiff’s injuries. Her employment in the past had been sporadic. She testified that she had quit her most recent employment a week before her injury, that she would have been unable to work more than another two months in any event owing to her pregnancy, and that she could not have worked for a period of six weeks after the birth of the baby. She did go to work in March, 1962, but was a housewife at the time of trial.

The extent to which the jury found the plaintiff’s evidence on this and other matters to be credible is, of course, unknown. Although the verdict is low, it is not so manifestly unjust or so shocking to the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. Cappella v. New York, N.H. & H.R. Co., 154 Conn. 410, 415, 226 A.2d 394; Carey v. Burgess, 150 Conn. 567, 568, 192 A.2d 43.

Consequently, we conclude that the court erred in setting aside the verdict. This conclusion makes it unnecessary to consider the other assignments of error.

There is error and the case is remanded with direction to render judgment on the verdict.

In this opinion House, Cotter and Thim, Js., concurred.