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Opinion of the Court.

was also

Great Western Ry. Co., 95 Minn., 398, construing these sections, say: "It has been uniformly held by this court that the purpose of the statute we are here considering is to prevent domestic animals from getting upon railroad tracks, thereby endangering the safety of the traveling public, persons in charge of trains, and of the animals themselves, by requiring the roads to be inclosed by proper fences and cattle guards. Blais v. Minneapolis & St. Louis Ry. Co., 34 Minn., 57; Smith v. Minneapolis & St. L. Ry. Co., 37 Minn., 103. The language of Section 2693 and the purpose of its enactment clearly indicate that the liability upon a railroad company for loss of domestic animals by a failure to fence its road is limited to animals killed or injured on its right of way.

We so construe the section." This statute considered by the circuit court of appeals, eighth circuit, in Bear v. Chicago Great Western Ry. Co., 141 Fed. Rep., 25, and it was held, that the statute entailed a liability upon a railroad company only for a damage done upon its own right of way.

The facts of that case are in many respects quite similar to the facts in the case at bar. The plaintiff Bear was the owner of a valuable horse alleged to be worth more than two thousand dollars. The horse being in the public highway went upon the defendant company's right of way through an opening in the defendant's fence, crossed the defendant's right of way and track, and went upon the right of way and track of the Northwestern Railway Company, where it was killed by a passing train owned and operated by the latter company. In the opinion in that case, Hook, Circuit Judge,

Opinion of the Court.

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says: “As to the construction of Section 2693: By its terms it relates alone to domestic animals killed or injured through the failure of a railroad company to inclose its right of way; such failure being termed an act of negligence. Does it include a case, such as this, where the animal was not killed on the right of way of the defendant? The enactment of the statute was in view of the obvious and special dangers incident to a railroad right of way and the moral duty of the owner to adopt reasonable precautions to guard against them. This moral duty was made a statutory duty, and the means prescribed as being best suited to attain the object were the erection and maintenance of fences and cattle guards. The defendant's duty was in relation to the dangers upon its own possessions. The duty to exclude stock from an adjoining or a distant right of way was upon the company that owned it.” A like interpretation and effect must, we think, be given to Section 3324 of our statutes. It therefore necessarily follows, that upon the admitted facts of the present case, The Hocking Valley Railway Company is not liable to the defendant in error, George Phillips, because of the loss he sustained, for in contemplation of law it has done him no wrong. In an action for neglect of duty it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute, and that he would not have been injured if the duty had been performed, but to entitle him to recover, he must further show that such duty was imposed for his benefit, or was one which the defendant owed to him for his protection and security, from the particular loss or injury of which he complains. Smith v. Tripp, 13 R. I.,


152; O'Donnell v. The Providence & Worcester R. R. CO., 6 R. I., 211. We have examined all the authorities cited by counsel for defendant in error, and such examination discloses that in each of the cases cited and relied upon, the loss or injury for which a recovery was had, occurred upon the right of way of the company against which judgment was permitted. Hence, these authorities are not controlling, neither are they in conflict with our holding in the present case.

Judgment reversed and judgment for plaintiff in error.



7. Máson.

Action to recover damages for personal injuriesNew trial may be

granted-On ground of inadequacy of damages allowed-Circuit court may reverse judgment of common pleas-On ground ver

dict not sustained by sufficient evidence. 1. In an action to recover damages for personal injuries, a new trial

may be granted on the ground of the inadequacy of the damages found by the jury, when it appears upon the facts proved that the jury must have omitted to take into consideration some of the

elements of damage properly involved in the plaintiff's claim. 2. On error in the circuit court to the overruling of a motion for

a new trial on the ground of the inadequacy of the damages found by the jury in an action for personal injuries, the circuit court may reverse the judgment of the court of common pleas and grant a new trial on the ground that the verdict is not sustained by sufficient evidence.

(No. 11759—Decided February 23, 1910.)

ERROR to the Circuit Court of Lucas county.

Statement of the Case.

The defendant in error, Ella J. Mason, sued the plaintiff in error to recover damages for personal injuries sustained by her in alighting from a street car, operated by plaintiff in error, on which she was a passenger. She avers that she was seriously and permanently injured and prays for ten thousand dollars as damages. The defendant admits that she was a passenger, and that she was, to some extent, injured. The plaintiff testified that she was sixty-two years of age, that prior to her injuries she was continuously employed in nursing and earned from ten to fourteen dollars per week; that she was confined to her bed for three weeks after the accident and that for two months she was unable to do anything, and that she had earned but ten dollars in the year following the accident, and that her eyesight and her heart are affected. The jury returned a verdict for $25.05.

The plaintiff moved for a new trial on the ground, among others, that "the verdict is so inadequate and insufficient as to show bias and prejudice on the part of the jury," that the verdict is contrary to the weight of the evidence and that the verdict is contrary to law. The trial court overruled the motion and entered judgment on the verdict. The plaintiff prosecuted error in the circuit court and that court reversed the judgment and remanded the case for a new trial on the ground that the trial court erred in not granting a new trial on the ground that the verdict was so inadequate that it was not sustained by sufficient evidence. Error is prosecuted in this court.

Opinion of the Court.

Messrs. Smith & Baker, for plaintiff in error.

Mr. Stephen Brophy and Mr. Orville S. Brumback, for defendant in error.

SUMMERS, C. J. It seems to have been assumed in some cases that at common law, in an action for damages, sounding in tort, a court might set aside the verdict of a jury when it was so excessive that it appeared to have been influenced by passion or prejudice, but that it was powerless to disturb one that was inadequate. The fact was, however, and the doctrine now generally accepted is, that the verdict of a jury is subject to the supervision of the court whether too large or too small. A leading case is Phillips v. London & Southwestern Railway Co., (1879) 5 Q. B., 78.

That was a suit for personal injuries. On the trial before Field, J., and a special jury, the jury gave the plaintiff seven thousand pounds. The plaintiff moved for a new trial, which was granted by the Queen's Bench Division on the ground that the amount of damages given by the jury was so small as to show that they must have left out of consideration some of the circumstances which ought to have been taken into account. The defendants appealed. James, L. J., in the court of appeals said: (85) “We agree that judges have no right to overrule the verdict of a jury as to the amount of damages, merely because they take a different view, and think that if they had been the jury they would have given more or would have given less, still the verdicts of juries as to the amount of damages are subject, and must, for the sake of justice, be subject to the supervision of a court

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