TBOMPSON V. SHEA.
the purposes for which these were used, was conflicting; and the proof as to the degree of care used by the plaintiff in attempting to pass over the steps was not so clear in favor of the plaintiff that the court could properly instruct the jury that there was no contributory negligence on his part. All these questions had to he submitted tp the jury, and, notwithstanding the measure of duty laid upon the defendant, they found in his favor. There is nothing to indicate that they were actuated by either passion or prejudice. To grant a new trial would be merely to allow an appeal upon these questions of fact from that jury to another. That is not allowable by the rules of law or the practice of courts. The motion must be overruled and. judgment be entered on the verdict.
& Co. v.
(C'ircaie Coure, D. IO'lOa, C. D. J1lIle 18, 1881 ;
1. DAJoLlGEll-PRoVlNcBl OJ' JURY.
It is the province of the jury to find the amount due, as well as plaintiff's right to recover, and after the jury are discharged the court cllunot increase the sum found. 2. NEW TRIAL- DISCRETION OF COURT.
Motions for new trial are addressed to the sound discretion of the court.
On Motion to Set Aside Verdict. Parsons It Runnells, for plaintiffs. .i Phillips, Goode It Phillips, for defendant LOVE/D. J. I have consulted with, Mr. Justice Miller about the motion in this case, and we find no warrant in law for increasing sum found by the jury, and entering judgment for said increased sum. It was a part of the province of the jury to find the amount due, as well as the plaintiff's right to recover. If the jury had brought a verdict for the plaintiff without finding any sum, the COUl't would have directed them to amend their verdict in that regard; and it would have been competent for the plaintiff to have moved the court to require the jury to correct their verdict before they were discharged; but tlie jury having been discharged, the court cannot increase the sum found. All that the court could do would be to Bet aside the verdict and order a new trial. Motions for new trials are, in the United States courts, addressed to the sound discretion of the court. The party losing has no absolute right to a new trial. This
cause having been three times tried, and the sum now in dispute being less than $1,000, the court must refuse to exercise its discretion in favor of granting a new trial. The plaintiff's motion is denied and overruled, and there will be a judgment in accordance with the verdict.
'0. NEW YORK, N.
H. & H. R. Co.
(Circuit Court, S. D. New York. July 14,1881.)
PLEADING-CLAIM FOR PENALTY AND DAMAGES CANNOT BE JOINED.
Where plaintiff sets up a claim against a railroad corporation for penalty incurred for excessive fare taken on one trip, and damages for personal injuries for unlawful ejection from defendant's cars on a subsequent trip, and defendant demurs to the complaint op. the ground that two causes of action have been improperly united; held, that under section 488 of the New York Code of Civil ProGedure, \II !;:Ruse of action for penalty cannot be joined with a cause of action for personal injuries, even where they are claims arising out of the same transaction. But section 448 should be construed to refer to cases of two or more" good causes of action" well pleaded; and the claim for a penalty in this case being in form and substance, the complaint contains but one cause of action, and that for personal and the demurrer should, therefore, be overruled, and the irrelevant matter in reference to thb penalty should be stricken out.
Demurrer to Complaint. I. T. Williams, for plaintiff. Wm, E. Barnett, for defendant. BROWN, D. J. This action was removed to this court from the supreme court of the state, and the snfficiency of the pleading is therefore to be determined according to the provisions of the New York Code of Procedure. The complaint sets up a claim to $50 as a penalty alleged to have been incurred by the defendant for demanding and receiving from the plaintiff an excessive fare, beyond the rate of thl'ee cents per mile allowed by law, upon her trip from New Rochelle to Mt. Vernon, on May 11, 1880; and also a claim to $5,000 damages for being violently and unlawfully ejected from the defendant's cars upon her subsequent return trip, on the same day, to her great suffering and injury. The defendant demurs to the complaint because it. appears upon the face thereof that two causes of action have been improperly united, viz., one for a statutory penalty, and the other for damages for personal injuries.