Mississippi Supreme Court, 1923

New Orleans & N. E. R. v. Ward

New Orleans & N. E. R. v. Ward
Mississippi Supreme Court · Decided March 15, 1923 · Holden
132 Miss. 462; 96 So. 401

New Orleans & N. E. R. v. Ward

Opinion of the Court

Holden, J.,

delivered the opinion of the court.

The appellee, Ward, recovered a judgment for seven hundred sixty dollars against the appellant railroad company as damages for being wrongfully ejected from a passenger train about one mile south of the depot in the city of Meridian; and from this judgment the railroad company appeals.

Ward testified that he had • transportation from Birmingham to New Orleans by way of Meridian on the appellant’s railroad, and that he was wrongfully ejected from the train at Meridian, at about 5:30 in the morning by the flagman, for no known reason whatever. Appellee was compelled to wait about two hours before catching another train for New Orleans, upon which he went and caught the train intended out of New Orleans for Alexandria, his destination. . Appellee claimed to have suffered some inconvenience, a slight cold, and occasional spells omaccount of being put off the train. The judgment for seven hun*467clred sixty dollars consists of actual damages only; no punitive damage was claimed.

The appellant presses two grounds for reversal: First, that the testimony of the plaintiff is so unreasonable and contradictory as to be manifestly false and unbelievable; and, second, that the amount of recovery is excessive.

The point made that the testimony is unreasonable and unbelievable is not without considerable merit; but after a careful consideration of the evidence, we are unable to say that the testimony is wholly unreasonable or manifestly false, because we think it is not an impossible story, even though it be surrounded with grave doubt; and it was within the province of the jury to believe it, though it may appear to have been hard for the ordinary mind to believe it; and therefore the' finding of fact by the jury will not be disturbed by this court. We- have gone as far in this direction as it is sound and proper to go under former decisions of this court.

On the second point that the amount of recovery is excessive, we shall not set out the facts of. the case because no' good purpose can be served thereby, but shall consider it sufficient to say that under the whole proof in the case we think the judgment of seven hundred sixty dollars is excessive; and for that reason the judgment will be reversed for the assessment of damages only, unless the appellee will enter a remittitur reducing the amount of recovery to three hundred fifty dollars, in which event the judgment will be affirmed.

Affirmed iñth remittitur.

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