once. They would see at once the force of that. We think that is a sufficient drawing of their attention to the matter. Of course, when a jury is presented to them as the tribunal to fix the amount of damages Judges are to assume that that jury is intelligent enough to do the duty cast upon it-that it has the necessary knowledge of the world, and if that be so all the Court is to do is to see that they are left to use their own knowledge of the world. So long as there is indicated to them substantially the line on which their judgment is to be exercised that is sufficient. We think that the generality of the language in which they were directed does not by any means render the direction insufficient. Finally, the damages themselves, being not improper or excessively large, we think in all the circumstances we should be departing from the rules of this Court in saying that this verdict should not be allowed to Stand. Then, apart from this general reasoning there is rule 192 under the County Court Act, which provides that a new trial shall not be granted on the ground of misdirection" unless in the opinion of the Court or Judge some substantial wrong or miscarriage has been occasioned thereby." We think, as the damages given are not excessive, having regard to the injuries suffered, that even if there be some element of non-direction no substantial injury has been done upon whomsoever the onus of proof rests. We therefore think the verdict should not be disturbed on the ground of misdirection. We think the appeal should be allowed and the order for a new trial set aside. The plaintiff to have the costs of this appeal and costs of the motion for a new trial. HOLROYD, J. I desire to say a few words in this case. The judgment which has just been pronounced by the learned Chief Justice has been a long one, and I am unable to keep exactly in my recollection the precise reasons he has given, and I am not sure that I agree with all of them. I do not feel the same difficulty as he did with reference to sec. 96 of the County Court Act 1890, which empowers a Judge of the County Court to grant a new trial as often as he shall think fit. He may go on granting new trials until doomsday as long as he has the Full Court to put him right on appeal. The Judge of the County Court is supposed to determine according to F.C. 1905 TONKIN v. JUMBUNNA COAL Madden, C.J. the rules of law or of practice in granting a new trial. If he makes a mistake there is an appeal, and he can be put right. If there is another trial, and the Judge of the County Court thinks that the verdict is wrong, as being against the evidence, he may grant another new trial. But it is not to be supposed that in granting the second new trial the Judge will attempt to evade the previous decision of the Full Court that his first decision was wrong. On the contrary it will be supposed that he will obey the order of the Court above. With regard to the point of which a great deal was made, and which was very much pressed upon us, namely-that, in determining whether the order of the Judge in granting a new trial should be set aside on appeal, we were to consider whether the Judge on the application for a new trial was justified as a reasonable man in coming to the conclusion that he did that we were not to consider on appeal from him whether his decision that the verdict of the jury was wrong, was right or wrong, but whether he himself as a reasonable man might fairly have come to the conclusion that the verdict should not stand, I say the Court of appeal has not to consider that question at all. It has to put itself in the place of the Judge of the County Court on an appeal from an order granting a new trial, and has to decide upon the evidence before the jury whether the jury as reasonable men could have given the verdict which they gave irrespective of what the Judge might think. That is my view of what this Court ought to do and of the course which it should follow in such cases. Otherwise this curious result would follow, that this Court would be trying, not whether the verdict of the jury was right, but whether what the Judge thought of the verdict was right. The jury would, as it were, be completely superseded. The verdict of the jury, who are judges of fact, might be entirely upset if only the Judge as a reasonable man might have come to a different conclusion from that the jury came to. That is just what this Court has to avoid. It has to say, not whether it would have come to a different decision from that of the jury, but whether the jury as reasonable men might have come to that decision. With respect to the damages, they do not appear to me excessive, and that, I think, is itself a reason for not interfering. I do not know whether the learned Judge below thought the damages awarded were excessive. He has not said so, and there is nothing to show what he did say. We have one affidavit stating that he told the jury certain things, and another on the other side stating that he told them a great deal more, and also that he explained the whole of the questions put to the jury by him. Now, I think it would be not at all satisfactory if this Court were to interfere with the verdict of a jury on the mere supposition that the Judge might have been displeased at his own charge with respect to damages or as to the amount awarded, and were to allow a new trial on that ground. Generally I concur with the conclusions at which the Court has arrived. As I say, I am not at all troubled by sec. 96 of the County Court Act 1890, taking an entirely different view of it from that of counsel for the defendant. A'BECKETT, J. I wish to add a few words as to the shape in which the case comes before us. Part of the material the Judge of the County Court had to consider was the jury's answers to certain questions. One of those questions is not at first sight easy to understand, but the explanation which has been suggested must, I think, be accepted as a reasonable one. The question is—“ Did the act of the plaintiff in putting the bar between the spur and pinion wheels and pinching the wheel back partly directly cause the accident to him?" That question and the answer to it are only intelligible on the supposition that it meant this:-Was this act, without which undoubtedly the accident would not have occurred, the inciting cause or partly the inciting cause of the movement of the engine which caused the accident? I do not wish it to be supposed that we had before us a question and answer which we thought involved an absurdity, and therefore disregarded as being immaterial. There is nothing in that question and answer so explained which would afford any reason for granting a new trial. It has scarcely been contended that, if we were considering this question on a motion for a new trial in the case of an action tried in the Supreme Court, there would be any reason for saying that there should be a new trial. But the argument has taken another F.C. 1905 TONKIN v. JUMBUNNA COAL Holroyd, J. shape, and another position altogether was contended for. It was suggested that, in considering whether the appeal should be allowed or not, we were to treat the Judge of the County Court, by virtue of the words of sec. 96 of the County Court Act 1890, as occupying a position with a wider discretion-with a greater latitude for the judicial exercise of that discretion-than a Judge of the Supreme Court would possess. It was said that he occupies an entirely unique position, and that we should in his case be guided by different considerations altogether from those which would guide us if he were a Judge of this Court. For the reasons already stated, I dissent from that view, and I think we should treat the matter as if it came before us on a motion for a new trial of an action tried by a Judge of this Court. No doubt we may accept the granting of this order for a new trial as indicating the Judge's dissatisfaction with the verdict of the jury; that is an element which is not to be left out of consideration, but which is not to govern the rights of the litigants. The Judge has not given his reasons for granting this new trial, and if he had, on this question of damages, felt that there should be a new trial, one would suppose that he would have said so. On this question of misdirection or non-direction, I fully concur in the observations that have been made, and I think that no mere formula should be expected to flow from the lips of any Judge, and that the material consideration is, not has he said to the jury all those things which the jury would have to consider, but has he, by what he has said, excluded from their consideration something which was material and essential and which ought to have weighed with them in estimating the damages. The task of specifying all those considerations which would legitimately enter into the minds of the jury is one which could rarely be performed with perfect success, and, because some of those matters of greater importance are referred to by the Judge, he is not to be taken as excluding from their consideration other matters, or that others, of such an obvious character as the uncertainty of human life, have been forgotten or excluded and disregarded by the jury simply because the Judge has not mentioned them. The duty of a Judge in such a matter, and the latitude that should be allowed to 66 him as to what he should and what he should not mention, are, I Solicitor for appellant: Ralph. Solicitor for respondent: Home. F.C. 1905 TONKIN v. JUMBUNNA COAL A'Beckett, J. J. M. GREGORY v. MURPHY. Justices Act 1890 (No. 1105), s. 89 (4)-Summons defective-Nullity-Irregularity A summons charging a person with an offence committed on the 22nd July was issued and served on the 7th of August. By a mistake the summons was dated the 7th of July, and made returnable on the 12th of July. The information was heard on the 12th August, and the defendant did not appear and was convicted. Subsequently the informant successfully applied to the Court of Petty Sessions to have the conviction set aside. On fresh proceedings being taken for the same offence the defendant pleaded autrefois convict. Held, that the improper dating of the summons amounted to an irregularity only, and that the conviction was not a nullity, and that the Court of Petty (u) 5 C.P.D. 280. MADDEN, C.J. 1905 November 5. |