MCKENZIE V. MCCLINTIC MARSHALL CO.

McKENZIE versus THE McCLINTIC-MARSHALL CONSTRUCTION COMPANY.
No. 104. Argued February 5, 1913. Decided February 28, 1913.
DAMAGES. INADEQUATE JUDGMENT INCREASED ON APPEAL. In an action for damages, if the judgment of the trial court is inadequate,
the same may be increased on appeal. Held that $500 is an inadequate compensation for the loss of an eye.
Appeal from the Circdit Court of the First Judicial Circuit; Hon. H. A. Gudger, Judge.
The facts appear in the opinion.
Hinckley and Ganson and V. Bruno, for appellant. Oscar Teran, for appellee.
WM. K. JACKSON, J. The plaintiff-appellant recovered a judgment ot $500 against the defendant-appellee in the Circuit Court of the First Judicial Circuit on September 25, 1912. The action was one for the recovery of damages on account of personal injuries received by the plaintiff arising out of the alleged negligence of the defendant on the 11th day of May, 1912. The plaintiff suffered the loss of an eye, and the question here presented is as to the adequacy of the judgment of $500 for such loss. There is also presented the question as to whether this coutt has the power to increase the amount of the judgment so rendered by the lower court, and, if not, whether this court should award a new trial to the plaintiff on the ground of the inadequacy of the damages.
While the complaint alleges negligence on the part of the defendant the answer was only a denial of the allegations of negligence, and an allegation of contributory negligence on the part of the plaintiff. There was no defense of "fellow servant" raised by the pleadings in the case or presented for the determination of the trial court. Although the defendant filed its motion for a new trial in the court below the same was subsequently withdrawn, and there is no appeal to this court on behalf of the defendant below. Therefore, it must be considered that the finding of the court below in favor of the plaintiff has established conclusively, so far as this court is concerned, negligence on behalf of the defendant and absence of contributory negligence on the part of

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