the amount of the verdict is large or because they take a different view of the case or would have awarded less. 15 Am.Jur., 205, p. 622; Malone v. Montgomery Ward & Co., Inc., D.C. Miss. 1941, 38 F.Supp. 369, 370; Peltomaa v. Katahdin Pulp & Paper Co., C.C. Me. 1906, 149 F. 282. Where there is any margin for a reasonable difference of opinion in the matter, the view of court should yield to the verdict of the jury, rather than to the contrary. Smith v. Pittsburgh & W. Ry. Co., C.C. Ohio 1898, 90 D. 783, at page 788.
'All that the court can do is to see that the jury approximates a sane estimate, or, as it is sometimes said, see that the results attained do not shock the judicial conscience.' 15 Am.Jur.,Id., 205, p. 622. 'The court will review the amount of a verdict only where it is so grossly excessive as would shock our sense of justice, and the impropriety of allowing it to stand is manifest.' Boyle v. Ward, D.C.M.D. Pa. 1941, 39 F.Supp. 545, 548.
When the court is asked to disturb the verdict of the jury, as stated by Mr. Justice Story in Blunt v. Little, C.C. Mass. 1822, Fed. Cas. No. 1,578, 3 Mason 102, 'It is indeed an exercise of discretion full of delicacy and difficulty. But if it should clearly appear that the jury have committed a gross error, or have acted from improper motives, or have given damages excessive in relation to the person or the injury, it is as much the duty of the court to interfere, to prevent wrong, as in any other case.' In that case the court held that the cause should be submitted to another jury unless plaintiff remitted a portion of the damages.
The practice was approved in Northern Pacific R. Co. v. Herbert, 1886, 116 U.S. 642, 646, 6 S. Ct. 590, 592, 29 L. Ed. 755. 'The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict was a matter within the discretion of the court. It held that the amount found was excessive, but that no error had been committed on the trial. In requiring the remission of what was deemed excessive it did nothing more than require the relinquishment of so much of the damages as, in its opinion, the jury had improperly awarded. The corrected verdict could, therefore, be properly allowed to stand.'
The matter was again before the Supreme Court in Arkansas Valley Land & Cattle Co. v. Mann, 1889, 130 U.S. 69, 72, 73, 9 S. Ct. 458, 32 L. Ed. 854. The court approved the language of Blunt v. Little and 130 U.S.at page 74, 9 S. Ct.at page 459 stated that 'The practice which this court approved in Northern Pacific R. Co. v. Herbert is sustained by sound reason, and does not, in any just sense, impair the constitutional right of trial by jury.'
Attention is called to the language in Smith v. Pittsburgh, etc., supra, 90 F.at page 787, and to that of Mr. Justice Harlan in Arkansas Valley, etc., v. Mann, supra, 130 U.S.at pages 74, 75, 76, 9 S. Ct.at pages 459, 460, as well as to 15 Am.Jur.,Id., 204, p. 620, and section 205, p. 623, and see 3 Moore's Federal Practice, 59.02, p. 3243, as to the distinction between remitting in a case where excess is the only infirmity of the verdict and granting a new trial where the jury was either governed by passion or had deliberately disregarded the instructions of the court or the facts that made for the defendant. In either of the latter cases, the court should grant a new trial. In fact, in Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 1931, 283 U.S. 520, 521, 51 S. Ct. 501, 75 L. Ed. 1243, Mr. Justice Roberts for the court held that in actions of this kind if the verdict is in any degree the result of passion or prejudice there can be no remittitur; a new trial must be awarded.
Here all we hold is that the sum awarded is grossly excessive and bears no proportion to the injury received or the damages sustained. See Jacoby v. Johnson, 3 Cir., 1903, 120 F. 487, 488, 'Undoubtedly, where the jury, after being properly instructed by the court, return an excessive verdict, the court, in the exercise of its judicial discretion, may make a conditional order granting a new trial unless the plaintiff remits the excess.' And see 3 Moore Op.Cit.supra, p. 3245, n. 12.
In determining whether or not the verdict is excessive, we take into consideration the fact that eight of plaintiff's ribs were fractured; however, they have recovered satisfactorily, except insofar as two of them have overlapped. As to the overlapping, there is a permanent condition to whatever extent this overlapping occurred and, as a result thereof, plaintiff will in the future suffer some discomfort. As to the time lost, i.e., thirty-two days in a sixteen and one-half month period, the testimony was that plaintiff's occasions of pain had reduced considerably. Considering the fact that plaintiff was injured severely; that he suffered considerable pain, and lost some time from work; also that he will likely suffer some pain and loss of time in the future; considering also that at the time of trial plaintiff was forty-one years of age with a twenty-seven year life expectancy, we feel that a fair amount consistent with the injury and damages revealed in the record would be $ 7,500.
An order in compliance with this opinion will be filed this date.
Now, this 10th day of September, 1948, It Is Ordered that the motion of the defendant, Reading Company, for a new trial is granted unless the plaintiff, Mervin Fornwalt, within ten (10) days after service of this order, shall in a writing filed with the Clerk of the United States Court in and for the Eastern District of Pennsylvania, remit all damages above the sum of $ 7,500.