Southern Pacific Company v. Tomlinson
This was an action brought in the district court of the Second judicial district of the territory of Arizona, in and for the county of Pinal, by Bertha, widow of Thomas Tomlinson, against the Southern Pacific Company, a railroad corporation, under title 36 of the Revised Statutes of Arizona of 1887, entitled 'Injuries Resulting in Death.'

The complaint alleged that while Thomas Tomlinson was walking along a public passageway, where it crossed the defendant's failroad, the defendant caused one of its locomotive engines and a train of cars to approach the crossing at a great and unusual rate of speed, negligently and carelessly omitting to give any signal of warning, by bell, signal, or otherwise, by reason whereof he was unaware of the approach of the train, and without any fault or negligence on his part the cars ran against him, and knocked him down, and wounded and lacerated his head and body so that he immediately died; and further alleged as follows:

'That the said Thomas Tomlinson left surviving him the plaintiff, who is his widow, and the following children, to wit, Alice Tomlinson, Fenton Tomlinson, Howard Tomlinson, and Baby Tomlinson; and the said Thomas Tomlinson left Fenton Tomlinson, his father, and Mary Tomlinson, his mother, surviving parents.

'That this action is brought by the said plaintiff, Bertha Tomlinson, for the benefit of herself and her said children, Alice, Fenton and Howard and Baby, and Fenton Tomlinson, Sr., and Mary Tomlinson, his parents.

'That by reason of the death of the said Thomas Tomlinson, caused and occasioned as aforesaid, damages have resulted to the said parents, surviving widow and children of the said Thomas Tomlinson, to the sum of $50,000.

'Wherefore plaintiff prays judgment, in favor of herself and the other parties for whose benefit this suit is prosecuted, for the sum of $50,000, and for costs of suit.'

The defendant answered, denying the allegations of the complaint, and alleging that the accident was caused by the negligence of Thomas Tomlinson.

At the trial the evidence, except that as to negligence on the part of the defendant, and on the part of the plaintiff, was as follows:

Several witnesses testified that Thomas Tomlinson was knocked down by the defendant's engine, and rendered insensible, his skull broken, and one heel cut off, and that he died two hours afterwards.

The plaintiff testified: That Thomas Tomlinson was her husband, and was 41 years old, and in good health, at the time of his death, and her own age was 33. That there were living, the issue of the marriage, four children,-Alice, aged nine years; Fenton, aged seven years; Howard, aged five years; and Baby, seven months. That her husband's father and mother, Fenton and Mary Tomlinson, were also living. That her husband was a merchant. And that the usual expenses of maintaining their household were, perhaps, $1,000 a year.

The defendant put in evidence the Carlisle life tables, according to which the mean duration of human life at the age of 40 years is 27 years and 7 months, and at 50 years is 21 years and one month.

The jury returned the following verdict, signed by their foreman: 'We, the jury duly impaneled and sworn in the above entitled action, find for the plaintiff, and assess damages against the defendant in the sum of $50,000, to be divided as follows: Bertha Tomlinson, $8,000; Fenton Tomlinson (father), $5,000; Mary Tomlinson (mother), $5,000; Alice Tomlinson (child), $8,000; Fenton Tomlinson (child), $8,000; Howard Tomlinson (child), $8,000; Baby Tomlinson (child), $8,000.'

The defendant moved the court to set aside the verdict and to grant a new trial because the verdict was against the law and the evidence, and because the damages assessed by the jury were excessive, unsupported by the evidence, and given under the influence of passion and prejudice.

The plaintiff thereupon filed a remittitur, in the following terms:

'Comes now Bertha Tomlinson, on behalf of herself and others interested herein, and remits from the verdict heretofore rendered herein, in the sum of $50,000, the following sums:

Bertha Tomlinson... $8,000,. remitted  to  $6,000

Alice Tomlinson..... 8,000,. ". ". 3,000

Fenton Tomlinson.... 8,000,. ". ". 3,000

Howard Tomlinson.... 8,000,. ". ". 3,000

Baby Tomlinson...... 8,000,. ". ". 3,000

Fenton Tomlinson,

father,............ 5,000,. ". ". 1

Mary Tomlinson,

mother............. 5,000,. ". ". 1

-Thereby making a total remittance of $31,998, and allowing the verdict to stand at $18,002.'

The court allowed the remittitur, denied the motion for a new trial, and gave judgment for the plaintiff against the defen ant for the sum of $18,002, apportioned as in the remittitur.

The defendant excepted, among other things, to the overruling of the motion, and appealed to the supreme court of the territory, which affirmed the judgment, and held that the plaintiff had a right to file the remittitur; and dealt with the question of the damages as follows:

'While the record does not affirmatively show that the trial court made a remission of a portion of the damages awarded a condition precedent to overruling the motion for a new trial, the damages awarded being clearly excessive, we think it quite evident that, had the remittitur not been filed, the court would have granted the motion. A trial court has the power, where excessive damages have been allowed by the jury, and where the motion to set aside the verdict is based upon this ground, to make a remission a condition precedent to overruling the motion. The exercise of this power rests in the sound discretion of the trial court. This doctrine is affirmed in the case of Cattle Co. v. Mann, 130 U.S. 74, 9 Sup. Ct. 458; also in Railroad Co. v. Herbert, 116 U.S. 642, 6 Sup. Ct. 590. Of course, if it is apparent to the trial court that the verdict was the result of passion or prejudice, a remittitur should not be allowed, but the verdict should be set aside. In passing upon this question the court should look, not alone to the amount of the damages awarded, but to the whole case, to determine the existence of passion or prejudice, and to determine how far such passion or prejudice may have operated in influencing the finding of any verdict against the defendant. When the circumstances, as they may appear to the trial court, indicate that the jury deliberately disregarded the instructions of the court, or the facts of the case, a remittitur should not be allowed, but a new trial should be granted. If they do not do so indicate, and the plaintiff voluntarily remits so much of the damages as may appear to be excessive, the court, in its discretion, may allow the remission, and enter judgment accordingly. Cattle Co. v. Mann, cited above. From a review of the whole case, we cannot say that the jury, in finding for the plaintiff in this action in a sum largely in excess of the damages proven, deliberately disregarded the facts, or the instructions of the court. We rather incline to the view that the jury, having found the issues in favor of plaintiff, was then prompted, through sympathy for the widow and children, and out of the enlarged liberality of which juries in such cases are usually possessed, to award damages largely in excess of what the proof warranted.' 33 Pac. 710. The defendant sued out this writ of error.

J. Hubley Ashton, for plaintiff in error.

A. H. Garland and R. C. Garland, for defendant in error.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court. 

Notes
Southern Pacific Railroad