Upon consideration of this cause in consultation we were impressed that by the verdict the jury had awarded plaintiff substantially full compensation with little, if any, consideration to any matter of negligence on intestate's part contributing to the fatal result.
We were impressed, upon consideration of much of the evidence tending to show that Grizzard, the engineer, ran his engine into the territory of Castleberry with too much speed, that this matter should have been given consideration by way of reduction of the damages awarded.
But counsel for defendant, in brief, had interpreted the case of Minneapolis, St. P. S. S. M. R. Co. v. Moquin,283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243, as denying the right of the court to reduce the amount of the verdict and affirm the case conditionally as thus reduced; and counsel for plaintiff acquiesced in that interpretation of the Moquin case. Counsel for each of the parties thus agreeing upon that legal question, we were lead to accept it without further inquiry as correct, and, of consequence, gave no further consideration to the matter of reduction.
However, defendant's counsel, on this application, in their supplemental brief, admit they had mistakenly construed the Moquin case, supra, and point out that decision was rested upon the theory that the entire verdict was the result of misconduct on the trial in an appeal to passion and prejudice, and thus an impartial trial was prevented. Further examination of the federal authorities is persuasive that the federal courts have held with uniformity that where excessiveness of the verdict was involved, on motion for a new trial, the court had the power to invoke the doctrine of reduction by remittitur of damages, which, if not accepted, would result in a reversal.
Many of the authorities are found cited in Dimick v. Schiedt,293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150, and in the annotated notes thereto, and need not be here repeated. Not only is this well established by the federal authorities, but this Court in Louisville N. R. Co. v. Parker, 223 Ala. 626,138 So. 231, assumed as much, and followed that practice wherein the Federal Employers' Liability Act was, as here, involved.
We, therefore, feel it our duty to give consideration to this question, and have reexamined the case in the light of this conclusion. *Page 62
As previously indicated, whatever may have been the initial fault as to misleading orders, we are impressed from all the evidence, including the disastrous consequence to the engines that were wholly demolished, Grizzard himself was not free from blame in that his speed in entering Castleberry was too great and lacking in caution. We, therefore, conclude that his contributory negligence being considered, the verdict was excessive and should be reduced.
A judgment will accordingly be here entered that, unless appellee files a remittitur, as provided by law, with the Clerk of this Court within thirty days, reducing the judgment to $16,000, the judgment of the trial court will stand reversed. If such remittitur is duly filed, the judgment for $16,000, with interest from October 29, 1937, the date of the judgment, will stand affirmed. The ten per cent. penalty is not to be assessed, and under such an order the appellee is taxed with the costs of this appeal. The costs as taxed against defendant in the court below will of course stand. Western Union Tel. Co. v. Bashinsky, Case Co., 217 Ala. 661, 117 So. 289; Montgomery Light Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205; Louisville Nashville R. Co. v. Parker, 223 Ala. 626,138 So. 231.
The original opinion and judgment are modified as herein indicated, and the judgment affirmed conditionally.
Affirmed conditionally.
BOULDIN, FOSTER, and KNIGHT, JJ., concur.