(dissenting).
This decision I think flies in the face of our recent decision in Railway Express Agency v. Mallory, 5 Cir., 168 F.2d 426, and of the Seventh Amendment of the Constitution, and is without support from the federal cases. In the Mallory case he by his own unnecessary act in handling a heavy safe alone hurt his back. The jury gave him a verdict of $23,500. The trial judge expressed disapproval of the verdict though he overruled a motion for judgment non obstante veredicto and new trial. All the judges sitting in this court thought the verdict excessive. The majority held that the trial judge having denied a new trial and there being no error in the trial, the appellate court could not interfere with the verdict. I dissented, not from the principle that the jury’s verdict could not be corrected as to amount by a federal appellate court, even by the grant of a new trial, but on the ground that the trial judge had not distinguished in his ruling on the motions between the judgment non obstante in which he had no discretion, and the grant of a new trial in which he and he alone had discretion to set aside the verdict merely because he thought the verdict wrong. I refer to the dissent because it cites the cases in which the functions of the trial judge and the appellate court in the English courts at the time the Seventh Amendment was adopted were so fully and well set forth by Judges Lurton, Taft and Harlan then members of the Court of Appeals of the Sixth Circuit. I think their conclusions have been everywhere accepted as correct. The Seventh Amendment (with emphasis added) is: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” Since Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732, it has always been held that after the facts have been decided by a jury, the verdict can be set aside only by the grant of a new trial by the trial judge, or by a reversal by any appellate court for error in the trial.
Mrs. Legler here demanded a jury trial and got it. Each side asked for a new trial on grounds which included a want of evidence to justify the verdict. The trial judge denied both motions, thereby approving the verdict. The majority of this court find no error in the trial. Solely because the verdict is in their opinion too small, they would overrule the trial judge’s discretion, and the jury’s opinion of the facts, and substitute their own. This seems to me to be a usurpation of power contradictory to the Seventh Amendment. The common law jury trial is not preserved and the facts found by the jury are reexamined in a manner not according to the common law. The Mississippi decisions cited are no authority at all for a court of the United States reexamining the facts found by a jury. Particularly as to the amount of damages a federal appellate court will not interfere. Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627.
I think too the facts stated in the majority opinion are put most favorably to Mrs. Legler rather than most favorably to the verdict as they should be. As to negligence, Mrs. Legler admits that she had often before been in the theatre and had seen the urns full of sand in the lobby, 20 inches high, 24 inches in diameter, and weighing 150 to 200 pounds. They had remained in the same place eight or ten years. The evidence is uncontradicted that they are usual equipment in all such theaters and no one had ever fallen over one before. There is no complaint about the lights. The only plausible ground of negligence against the theater is that the employee who suggested the formation of a second line on the left side of the lobby did not call attention to the urn. The jury could justly have considered this negligence slight.
Mrs. Legler testifies there was a crowd in the lobby but she also says repeatedly that they were “in line” on the right side. Her sister-in-law says the same, and that Mrs. Legler was on her left, she on Mrs. Legler’s right, holding hands. Both say they had just gotten in the door, and so were at the rear of the double line. “Ev*986erybody was standing in line.” The photographs show the. urn was just inside the door on the left of the line. Mrs. Legler was right opposite it. There was no one between them and the urn, for they constituted “the line” there. The attendant said, “Some of you come over and form a line on the left side of the lobby and you can get in quicker.” Mrs. Legler, as the jury could well conclude, turned to go as soon as possible to get a high place in the new line and without looking at the urn at her left side fell over it. I think they could justly regard her precipitancy and failure to look at so large a .piece of furniture which she knew was in 'the theater lobby was the main negligence. Such contributory negligence, as the jury were charged, did not defeat recovery but required a proportionate reduction of damages. Negligence vel non was a jury question. Wilkerson v. McCarthy, 69 S.Ct. 413. .
The evidence as to damages is that her whole medical expense was $150, broken eye glasses $18; total $168.00. She lost a few days from her work, and hired an assistant, but she herself was soon back on the job from 7 A.M. to 2:30 'P.M. -Her tea room business had grown greatly and she had before considered employing a helper, as she did at $40 per week after her injury. Her cure was complete in a few weeks, except a weakness in her knee in going upstairs. She continued her helper, however, up to the time of the trial, and her wages were the principal item of damages claimed. I think the jury could justly conclude that her wages were not a necessary expense for more than a few weeks. It seems to me that $750 would not be unreasonable as full damages and a third of it, $254, visited on the defendants would not be unfair. That is’ not “nominal damages'.” We appellate judges have no jurisdiction to set this verdict aside. State Farm Auto. Ins. Co. v. Doughty, 5 Cir., 149 F.2d 812; and the many cases cited therein including three from the Supreme Court.
Rehearing denied; Sibley, Circuit Judge, dissenting.