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Martin v. Launch

January 11, 1962

E. D. MARTIN, APPELLANT,
v.
FOSS LAUNCH & TUG COMPANY, RESPONDENT



Appeal from a judgment of the Superior Court for King County, No. 521945, Theodore S. Turner, J., entered October 2, 1959.

Rosellini, J. Finley, C. J., Hill, Weaver, and Ott, JJ., concur.

Author: Rosellini

The plaintiff was injured while employed on a tug boat belonging to the defendant, as a result of the unseaworthiness of the vessel. In the trial of this action, the jury was instructed that the defendant was liable as a matter of law and that the sole issue for its determination was the amount of damages. It returned a verdict awarding the plaintiff $6,160 for care and maintenance, and $34,074 for personal injuries, a total of $40,234.

In ruling on the defendant's motion for a new trial, the trial court determined that the verdict was excessive and gave the plaintiff the option of accepting a reduced verdict or submitting to a new trial. This appeal was taken from the order entered on that decision.

[1] There is a statutory presumption that the amount of damages awarded by the verdict of the jury is correct. RCW 4.76.030. And this court is in any event reluctant to interfere with the conclusion of a jury, when fairly made, as to the amount of damages a litigant has sustained, as the determination of damages is primarily a jury function. Anderson v. Dalton, 40 Wash. 2d 894, 246 P.2d 853, 35 A. L. R. (2d) 302.

[2] However, it is within the inherent power of the trial court, in the exercise of its discretion, to relieve a party where an injustice has been done in the awarding of an excessive verdict, by giving the prevailing party the option to accept a smaller amount or submit to a new trial. Scobba v. Seattle, 31 Wash. 2d 685, 198 P.2d 805. This court likewise has an inherent power to so reduce a verdict. Anderson v. Dalton, supra.

In this case, the trial court reduced the verdict from $40,234 to $11,028. We are fortunate in having before us the court's memorandum decision in which the basis for its computation is set forth.

Briefly stated, the facts set forth in this memorandum opinion are: The plaintiff was employed on the tug Anna Foss as a member of the crew. On the date of the accident, November 25, 1957, the tug had a barge under tow, and one of the lines was attached to a large stanchion on the barge, which, being alongside the tug, was a few feet above the tug's deck. As the plaintiff stepped from the engine room onto the deck, this stanchion broke, fell on the plaintiff, striking him in the chest, hip, and leg, and knocked him to the deck. Within an hour or less, the plaintiff was taken to the United States Public Health Service Hospital, known as the Marine Hospital, in Seattle, where treatment was offered. The plaintiff then voluntarily left for his home in Olympia. He received some medical treatment there. In March 1958, he consulted Dr. O'Neil, of Seattle, who has since been his attending physician.

The jury was justified in finding that prior to the accident, the plaintiff had two congenital abnormalities in his back, consisting of the absence of the bony hook joint of the fifth lumbar vertebra and an enlarged transverse process of the fifth lumbar vertebra. These defects were asymptomatic prior to the injury. In the accident the plaintiff received a sprain contusion of the lumbar spine, complicated, with nerve root injury, and a sprain contusion of the sacrococcygeal area. Because of the injuries, the plaintiff was disabled from following his regular occupation of operator of heavy-duty logging equipment and trucks, and from following

other occupations of heavy physical labor involving the use of the back.

The injuries caused the plaintiff pain in the low back, which was intermittent, depending upon the extent of his physical activities and other factors; and he also suffered a partial ...


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