Kaufman, Anderson and Feinberg, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
This case presents the somewhat unusual situation of a winning plaintiff arguing that the jury's verdict should be upset and a new trial ordered. Precious H. Caskey, the appellant, brought a negligence action against the Village of Wayland, New York, and the estate of Charles E. Rose, a former Wayland police officer, to recover for the wrongful death of her husband Willard E. Caskey, who suffered critical injuries when officer Rose's police car, in which the deceased was a passenger, left the highway and crashed. Mrs. Caskey also sought damages for the pain and suffering endured by her husband prior to his expiration. The jury returned a verdict in appellant's favor, awarding her $30,900.00 on the wrongful death action, and $1,100.00 for pain and suffering. On appeal, Mrs. Caskey argues that the verdict was "hopelessly and grossly inadequate," and that the trial judge's instructions unfairly influenced the jury to return such an award. For both of these reasons we are urged to order a new trial limited to the issue of damages.
The evidence presented at the trial disclosed the following sequence of rather bizarre events which led to Mr. Caskey's death. The deceased was a long distance interstate tractor-trailer driver, employed by a trucker whose depot was located in Charlotte, North Carolina. On May 14, 1964, Caskey and a co-employee, Elburn L. Christy, left the terminal in Rochester, New York, in separate trucks, with a cargo destined for North Carolina. At about 10:25 that evening, as the trucks were passing through the Village of Wayland, the drivers were stopped by officer Rose and given tickets for operating vehicles that were over the legal height.
Christy testified that the officer told both men that they were under arrest and that since neither alleged violator had the funds to post $100 bail, they would have to remain in Wayland for trial at ten o'clock the next morning. The officer permitted Caskey, however, to call his employer in Charlotte, and the dispatcher there informed Caskey that the necessary $200 would be sent by wire. The two drivers were then allowed to go to a local hotel for coffee while officer Rose continued to make his rounds. Later that evening Caskey and Christy met Rose. At that time the officer attempted to phone the Western Union office in Danville, New York, to see if the bail money had arrived, but the call was interrupted by the operator who informed Rose that he had been requested to investigate an accident that had occurred near a local cemetery. Christy testified further that the officer then turned to the two drivers and stated, "You men go with me." They complied with his order because, as Christy put it, "we were under arrest, so we went."*fn1
The three men then rode in officer Rose's car (the officer did the driving) to one of the local cemeteries. After arriving there and observing nothing significant, the officer concluded that the accident must have occurred near another cemetery and set out in that direction. Christy stated at the trial that he had observed the speedometer which read 75 miles per hour, and that the automobile was still accelerating when it failed to negotiate a curve, left the highway and crashed head on into a tree. The accident occurred at about 2:00 A.M. on May 15, 1964. Officer Rose was killed and Caskey was taken in a critical condition to a hospital in Rochester where he died on the morning of June 2.
The greater part of the trial was taken up with questions relating to the damages which Mrs. Caskey was entitled to recover (assuming the jury found negligence on the part of officer Rose) for the wrongful death of her husband and for the pain and suffering he endured prior thereto. In this connection, it was established that Mr. Caskey was 40 years old at the time of his death while his wife was 3 months younger. They had been married approximately 9 months earlier and lived in Iron Station, North Carolina, with Mrs. Caskey's 2 teenage daughters from a previous marriage. No claim of dependency of these 2 daughters on the decedent was urged. Moreover, Mrs. Caskey held a part time job from which she earned $30 a week, the money being used to meet the expenses of her children; and Mr. Caskey's earnings for the years 1957-63 ranged from approximately $5,500 to $8,500. Dr. Robert H. Carrier also testified as to the nature of the injuries sustained by Mr. Caskey, the type of medical treatment he received in the hospital, and the possible pain and suffering he endured during the 18 days he was in the hospital prior to his death.
After hearing the testimony and being charged by the judge, the jury returned a verdict in the sum of $30,900 on the wrongful death action, but at first awarded no damages for pain and suffering. The trial judge, recognizing the jurors' obvious error, directed them to return to the jury room for further reflection.*fn2 Upon reconsideration, the jury awarded $1,100 for pain and suffering and adhered to the wrongful death award. Mrs. Caskey's counsel then moved to set aside the verdict as inadequate and for a new trial. The motion was subsequently denied by Judge Burke.
Since the appellees do not contest on appeal the inherent finding of negligence, we shall proceed to appellant's argument that this Court should order a new trial because the jury's verdict with regard to both causes of action was "hopelessly and grossly inadequate." The evidence in this case causes us to believe there is much merit to Mrs. Caskey's claim. Faced with hospital and funeral bills which totaled $3,323.61 (and without considering fees for counsel), she would be left with only $27,576.39 as compensation for the financial loss she suffered as a result of her husband's death. In light of Mr. Caskey's age when he died (40 years) and his earnings which averaged slightly over $7000 a year for the 7 years prior to his death,*fn3 we must frankly recognize that the jury's award for Caskey's wrongful death appears rather penurious.
We share this view also with respect to the damages awarded for pain and suffering (damages that were awarded only after the jury had been asked by the judge to reconsider its original verdict). Mr. Caskey was hospitalized for 18 days with serious injuries that eventually led to his death. It appears that he was never unconscious during this period, and for the first 7 days no pain killers could be administered because of the head injuries he had sustained. But the jury saw fit to assess only $1100 for this severe pain and suffering.
Having stated our view with respect to the jury's award, we hasten to add that we recognize that a jury's verdict should not be disturbed merely because appellate judges consider the judgment scanty or believe that they would have awarded a larger sum had they tried the case. See Dagnello v. Long Is. R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961); Nussbaum v. Warehime, 333 F.2d 462 (7th Cir. 1964), cert. denied, 379 U.S. 979, 85 S. Ct. 682, 13 L. Ed. 2d 570 (1965). It is not our function to second guess the jury. Nevertheless, "where the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand," Dimick v. Schiedt, 293 U.S. 474, 486, 55 S. Ct. 296, 79 L. Ed. 603 (1934) (emphasis added); and the seventh amendment does not bar us from reviewing the denial of a motion for a new trial grounded on the allegedly excessive or inadequate verdict. See Dagnello v. Long Is. R.R. Co., supra, 289 F.2d at 802-805; but see Neese v. Southern Ry. Co., 350 U.S. 77, 76 S. Ct. 131, 100 L. Ed. 60 (1955) (per curiam).
It is well established, however, that when an appellant seeks a new trial because the verdict was excessive, the grounds for setting aside a denial of such a motion are quite narrow. If the "action of the trial court * * * [is] not without support in the record * * * its action should not * * * [be] disturbed by the Court of Appeals." Neese v. Southern Ry. Co., supra. And this Court has held that a new trial should not be ordered unless there has been "an abuse of discretion" and the verdict "is so high that it would be a denial of justice to permit it to stand." Dagnello v. Long Is. R.R. Co., supra, 289 F.2d at 806. Accord, Diapulse Corp. of America v. Birtcher Corp., 362 F.2d 736 (2d Cir.) cert. dismissed, 385 U.S. 801, 87 S. Ct. 9, 17 L. Ed. 2d 9 (1966); La France v. New York, N.H. & H.R.R. Co., 292 F.2d 649, 650 (2d Cir. 1961) (verdict will not be modified unless "fantastic"); Wooley v. Great Atl. & Pac. Tea Co., 281 F.2d 78, 80 (3d Cir. 1960) (verdict not to be disturbed unless "so grossly excessive as to shock the judicial conscience" so that it would be a "manifest abuse of discretion" not to order a new trial).
As we have noted earlier, it is rare for a plaintiff with a verdict in his favor to request a new trial on the ground that the jury's verdict was inadequate; thus, the courts have had little opportunity to articulate the standards for determining when a verdict is so inadequate as to require a new trial.*fn4 We cannot, however, see any sound rationale for formulating standards to be applied when a verdict is challenged as inadequate which would differ from those utilized upon a challenge for excessiveness. See Wooley v. Great Am. & Pac. Tea Co., supra; Bass v. Dehner, 21 F. Supp. 567, 568 (D.N.M.1937) (new trial where verdict is "grossly inadequate"). But, we are spared the task of clearing the semantic forest, for in this case the question of whether the judge should have set aside the verdict as inadequate need not be decided, since we agree that the trial court's instructions on damages had the effect of influencing the jury unfairly to bring in a small verdict. While it is true that trial judges in the federal courts are given wide latitude to comment on the evidence that has been presented, see, e.g., Quercia v. United States, 289 U.S. 466, 53 S. Ct. 698, 77 L. Ed. 1321 (1933); United States v. De Fillo, 257 F.2d 835, 839-840 (2d Cir. 1958), cert. denied, 359 U.S. 915, 79 S. Ct. 591, 3 L. Ed. 2d 577 (1959), the judge must take care not to utilize the privilege of comment so as to prejudice beyond repair a party's cause.
We have examined the judge's charge assiduously because of appellant's claim that the court's charge was the cause for the small verdict. In his charge, Judge Burke first summarized the testimony regarding the events that led up to the tragic accident. He then instructed the jurors as to the law of negligence and assumption of risk, and explained the nature and kinds of recovery which Mrs. Caskey would be entitled to receive if the jury found that officer Rose had been negligent. The judge went on to summarize the testimony which related to the character ...