Judgment:
Lord Deas—The main ground on which a new trial is asked is that the pursuer is now much recovered from the condition in which he was at the trial—in fact that he is substantially recovered I do not think it necessary to consider whether substantial recovery is a competent ground on which to ask for a new trial; if so, it would require a very strong case, and I think there is no such strong case here, for even taking it on the affidavits for the Railway Company, I should think it impossible to say that the pursuer has substantially recovered. I shall not go into details, but there is nothing in the facts spoken to that of itself would indicate that. It is worthy of remark that on the defender's side there are no medical certificates There are, on the other side, by eminent men who were examined at the trial, and there was nothing to prevent the defender from giving such evidence at the same time. Dr M'Leod is the only witness who negatives the idea that the pursuer was suffering from proper paralysis. He seems to mean that there was no organic lesion such as the doctors on the other side said there was. I do not know what he thinks of the subject now, and any opinion on the point is left wholly to the doctors who were called at the trial for the pursuer, and they are satisfied that there was and is organic lesion. That there may be and is partial recovery is beyond a doubt; we have all seen again and again that paralysed people have partially recovered. I see nothing here to show that the same thing may not be the case now. The doctors say so, and yet they adhere to the opinion that there is actual and proper paralysis. If it were proved that the pursuer had so far recovered as to be able to conduct his business, that might possibly have raised a question; but no one says so, and there is no such strong case of recovery since the trial as to raise the question. Then the only other ground is excess of damages; that is quite a different and a very ordinary ground for granting a new trial. It is quite plain from what has been said that the injury is a serious one. If I had been on the jury I do not think I should have given quite so much; but that is no reason for interference with the verdict, and I think the rule should be discharged on both grounds.
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Lord Ardmillan—I agree with your Lordship. Under the least favourable view for him, the pursuer has suffered great pain and injury, and though I agree with your Lordship in thinking that the damages are rather too high, yet we do not interfere with a verdict unless the sum given is preposterously too large. I am of opinion that a verdict as a rule is not to be interfered with on account of emerging circumstances, and I am of opinion that nothing but an extreme case would justify us in interfering with this verdict. I see no reason to doubt the accuracy of the doctors’ diagnosis.
Lord Mure—I am of the same opinion. I have some doubts on the simple question of excess of damages, which I think very high; but though I should have given less had I been on the jury, still I have no wish to disturb the verdict on that ground. I entirely concur with Lord Deas in his remarks as to the effect of the evidence, and as to the competency of such a ground for granting a new trial.
Lord President—If it had been my duty to give a verdict, I should not have given £3000; but I agree with your Lordships in thinking that the excess beyond what we think reasonable is not so great as to entitle us to grant a new trial; we never do so unless the damages are excessive, and I am not much surprised that the jury gave heavy damages. The other ground is peculiar, and rather novel. If the case had been tried during session, the verdict would have been applied in a few days, and there would have been no chance of applying for a new trial on such a ground, and so the defenders' opportunity can only be called a piece of luck; but still if they are so lucky as to have a long interval in which circumstances may emerge, I am not clear that under the statute they have not the right to avail themselves of it. All we have to do therefore is to see what is the state of the facts. I am assuming that £3000 was a proper award, but it is said that the medical evidence has turned out untrustworthy, that the doctors represented the case as a hopeless one, and now it turns out that the man is better. I do not think that is enough. If it turned out that the doctors had been utterly wrong in their diagnosis, there might have been something to be said, but I can find no reason in the affidavits for coming to that conclusion. I think their diagnosis is quite accurate, and that the pursuer has sustained permanent and serious organic lesion. Professor Lister's and Dr Watson's certificates seem to be a fair representation of what has happened, and they are still of the same opinion as they were at the trial—though there is abatement of the symptoms, the disease is the same. I think the circumstances do not amount to such an emergence as to make it essential to justice to grant a new trial, so I am for discharging the rule.
