HUTCHESON, Circuit Judge.
The suit was for damages for personal injuries resulting from a collision between a motorcycle on which plaintiff was riding and an automobile which was owned and driven by defendants. Tried by the judge without a jury, it resulted in findings and a judgment that defendants were liable to plaintiff and should pay him as damages $14,643.24. Both plaintiff and defendants have appealed.
Plaintiff, assailing the judgment for inadequacy, is here insisting that the undisputed
Defendants urge upon us that the findings and judgment, that they are liable to plaintiff, are without support in the evidence and that the judgment should be reversed. They insist that if wrong in this, plaintiff's attack upon the award of damages as constituting reversible error is without any basis in law or in fact, and the judgment must be affirmed.
As to defendants' appeal, it is sufficient, without setting out the evidence, to say that it fully supports the finding that the collision and personal injuries plaintiff suffered were the result of defendants' fault without contributing fault on plaintiff's part, and that the judgment on defendants' appeal must be affirmed.
As to plaintiff's appeal, while we do not agree with the defendants' general proposition, that in suits for damages tried to a court without a jury the judge's findings of fact are conclusive on appeal, we do think it quite plain that the judgment in this case may not be reversed. The rule invoked by defendants, that in an action at law the question of the amount of damages is a question of fact to be settled in the trial court
In examining the record in this case in the light of these views, it must be borne
Appellant presents the question for review and urges it upon us as though the suit were for liquidated damages, that is as though the amounts to be awarded were definitely and precisely fixed by positive and undisputed evidence.
The truth is quite the contrary. Expenses, $2643.24, were indeed liquidated. Outside of these, as the very statement of plaintiff's claims, as "estimated", and the very nature of his proof make quite clear, there is nothing fixed or definite in the proof, and, therefore, no basis in it for his demand that the judgment must be reformed and affirmed here or reversed with directions to increase the damages awarded.
In so far as plaintiff asks us to increase and affirm the judgment, he is asking us, in a case here for review of errors and not for trial de novo, to assume the role of the trial judge, a role we may not play. In so far as he asks us to reverse the judgment with directions to the trial judge to itemize and increase the damages awarded, he is asking us to find on evidence which does not afford any definite basis for such determination that the finding of the judge awarding damages was clearly erroneous.
In these circumstances it is not our duty to determine whether, if we were triers, we would have awarded damages in the same, a greater, or a less amount. It is our duty to determine only whether we can say that the amount awarded was so inadequate that it was clearly erroneous, that is unjust. The evidence furnishes no basis for determination that it was.
The judgment is affirmed.
"Whether or not they are supported by the agreed facts and the evidence is the question whether or not they are sustained by the weight of the evidence, and that is a question of fact, which, in a trial of an action at law by the court, as in the trial of such an action by a jury, the national courts are forbidden by the Constitution and the law to review. Seventh Amendment to the Constitution; Rev.Stat.U.S., §§ 649, 700 [28 U.S.C.A. §§ 773, 875]; Barnsdall v. Waltemeyer, 8 Cir., 142 F. 415, 417, 73 C.C.A. 515, 517.