#### GOLDSMITH *v.*DETROIT, JACKSON & CHICAGO RAILWAY.

New Trial — Motions—Weight of Evidence — 'Trespass on Case —Personal Injuries.

The refusal of a new trial unless plaintiff should aocept a specified sum if tendered, as his damages, for personal injuries, is not warranted, although the jury rendered a judgment for defendant pursuant to argument of plaintiff’s attorney that he would rather have a judgment of no cause of aotion than a small amount; and this court, on error, will . grant a new trial on the ground that the verdict was against the weight of the evidence in accordance with the finding of the trial court on such motion.

Error to Washtenaw; Kinne, J.

Submitted October 28, 1910.

(Docket No. 135.)

Decided March 31, 1911.

Case by Earl Goldsmith against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for defendant. Plaintiff brings error.

Reversed.

*Lehman, Riggs & Lehman,*for appellant.

*Cavanaugh & Wedemeyer (Corliss, Leete & Joslyn,*of counsel), for appellee.

Bibd, J.

Plaintiff instituted this suit to recover for personal injuries which he claims to have suffered while riding in one of defendant’s cars. On the trial of the cause the jury returned a verdict against him. He brings the case to this court for review.

The plaintiff resides at Wayne. While on his way home from Detroit, on the 8th day of August, 1908, on one of defendant’s cars, it collided with another car near the city limits. When the collision occurred, the seat in which plaintiff was sitting and the one in front of it were forced together, thereby catching and injuring the calves *178of plaintiff’s legs. Upon the trial the defendant did not contest the allegation that it was negligent, but did contest the question of the extent of plaintiff’s injuries. Much testimony was introduced on this phase of the case, and on this issue the jury found with the defendant. Plaintiff then moved for a new trial, and the trial court, in passing upon the motion, made the following order:

> “ It is ordered that a new trial be granted to said plaintiff in said cause, unless the said defendant, within 10 days from this date, pay to the said plaintiff the sum of *$300;*and it is further ordered that, if the said defendant offer said sum of $300 to said plaintiff or his said counsel within 10 days from this date, and if said plaintiff declines and refuses to accept the same, then it is ordered and decreed by this court that the motion for a new trial is denied.”

Plaintiff’s counsel now assigns error, *first,*on the refusal of the court to grant a new trial; and, *second,*because the court granted a new trial with the conditions annexed.

It seems to be conceded that the defendant’s negligence caused the collision, and we think the record fairly shows that plaintiff was entitled to some damages, and he would doubtless have recovered a small sum, had not his counsel made the following statement to the jury in his closing address:

> “What is the use of talking about $200 or $300. I would rather your verdict should be ‘ No cause of action ’ than to have it $200 or $300, because that would be adding insult to injury.”

It is quite probable that the jury took counsel at his word, and gave him nothing rather than to return a small verdict. In view of counsel’s invitation to the jury to return the verdict which they did, we should not be inclined to disturb it, were it not for the fact that the trial court has indicated by his order that a new trial should be granted. When a trial judge, before whom a case has been tried, is of the opinion that substantial justice has not been *179done, and it is his opinion that a new trial should be had, we are very loath to disagree with him. By annexing a condition that defendant should pay plaintiff $300, the trial court has made it manifest that in his opinion substantial justice was not done in the premises. We cannot, however, agree with him as to his right to annex such a condition. It was equivalent to the trial court himself assessing the damages. This is the province of the jury. This court has frequently sanctioned the reduction of verdicts where they were larger than the law would justify, but the right of a trial court to reduce a verdict under such circumstances would not carry with it the right to assess damages where the jury has refused to assess any. The plaintiff has the right to insist that the jury shall assess the damages. This question was passed upon in *Lorf*v. *City of Detroit,*145 Mich. 265 (108 N. W. 661). In that case a similar order was made, and this court held that it could not be sustained.

We agree with the trial court that the verdict was against the weight of the evidence and that a new trial should be granted, but without the conditions imposed.

The case is reversed, and a new trial ordered.

Ostrander, C. J., and Hooker, Moore, and Stone, JJ., concurred.