dissenting as to additional judgments
I concur without hesitation in the affirmation of the judg*766ment of the trial court for $8,000. I am constrained, however, to dissent from the conclusion of the majority to enter ,an additional judgment for $2,000 in favor of the plaintiff.
By the decided weight of authority, trial judges are vested with discretionary power to require a plaintiff to remit a part of his recovery, as ascertained by the verdict of a jury, or else submit to a new trial, in personal injury cases. 39 L. R. A. (N. S.) 1075, note. The statute (Acts 1906,.p. 251), which authorizes a review of that discretion by this court, was not intended either to take away or to diminish that power. Indeed, its existence is thereby expressly recognized. A verdict, then, which has been disapproved, and which comes to this court without the sanction of the trial judge has no such sanctity as that which properly attaches to a verdict which is approved by him. While it is true that there are no scales by which to measure human suffering, and the verdicts of juries in personal injury cases are generally approved, still there is a standard, based upon the common or average judgment of mankind, which sanctions and approves large verdicts for serious injuries and smaller verdicts for slight injuries. That standard is recognized by the act limiting the recovery to $10,000 where a negligent injury results in death, and by the amounts fixed in the Virginia workmen’s compensation act (Acts 1918, p. 637), under which the maximum recovery is $4,000. It is also manifested in the verdicts which juries generally return, and which trial judges generally approve, for such injuries. In my opinion, all that the act of 1906 intended was to confer jurisdiction on this court to review the action of the trial courts where the verdict is reduced and the plaintiff accepts such reduction under protest. This court, then, should carefully weigh the evidence in such cases, bearing in mind the fact that the trial judge both saw and heard the plaintiff and his witnesses, and with the
*767usual presumption in favor of the correctness of the judgment under review, and unless it is clear that the trial judge has abused the discretion vested in him to prevent what seems to him to be an injustice, this court should approve his action.
“There is always a fair presumption that the verdict of the jury is correct, and when the judge who presides at the trial, who has heard all the evidence, witnessed all the proceedings and the manner of conducting the cause before the' jury, is satisfied with the verdict and refuses to set it aside, an appellate court which cannot have an equal opportunity for forming a just judgment ought not to interfere without the strongest reasons for doing so. ‘On the other hand/ as was said by Judge Baldwin, in Patteson v. Ford, 2 Gratt. (43 Va.) 19, 25, ‘when the judge’ (who presided at the trial) ‘is dissatisfied with the verdict and grants a new trial, some latitude must be allowed to his discretion; especially where the propriety of its exercise is affirmed by a verdict on such new trial for the party to whom it was granted.’ In setting aside the verdict, the trial court must, to some extent, pass upon the weight of the evidence before the jury; and a stronger case must be made in order to justify an appellate court in disturbing an order granting a new trial, than where it has been refused. The reason usually assigned for this rule is that the refusal to grant a new trial operates as a final adjudication of the rights of the parties, while the granting of the new trial simply invites further investigation, and affords an opportunity for showing the truth without concluding either party. Barton’s Law Pr., 725-6; Ruffner v. Hill, 31 West Va. 428, 431-2 [7 S. E. 13] ” Chapman v. Va. Real Estate Co., 96 Va. 177, 188, 31 S. E. 74, 78.
“It would, indeed, be a futile and idle thing for the law to give a court supervisory authority over the proceedings and the manner of conducting a cause before the jury, and the’ right to set aside the verdict of the jury therein because *768contrary to the evidence, unless the judge vested with such power could consider to some extent at least the evidence in the cause; * * Cardwell v. Norfolk & Western Ry. Co., 114 Va. 500, 506, 77 S. E. 612, 614.
In this case, under the evidence, I think that the trial judge properly reduced the verdict, and that it should not be increased beyond the amount approved by him, $8,000.
Affirmed and additional judgment for amount remitted. .