Majority
p. 445Jennie McGahie, Appellant, v. John A. Sproat, Administrator, etc., of Bridget T. McClennen, Deceased, Respondent. Second Department, March 2, 1906.
Headnote
Negligence — verdict not excessive.A verdict of $1,500 for injuries received in á collision, by which plaintiff’s arm • was broken in three places and which "caused internal congestion, etc., is not excessive, and an order requiring the plaintiff to stipulate to reduce such verdict to $500 will be reversed.
Rich, J:, dissented.
Appeal by the plaintiff, Jennie McGahie, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 29th day of June, 1904.
Mitchell May, for the appellant.
Francis B. Mullin, for the respondent.
The action is for negligence. There was a collision between the plaintiff’s carriage arid that of the defendant’s intestate,, and as a consequence the plaintiff suffered bodily injuries. The jury rendered a verdict of $1,500 in her favor. The motion of defendant on the minutes to set aside the verdict and for a new trial on the ground “ that the verdict is excessive, against the evidence, and the ' weight of the evidence, and as unsupported by the evidence, and
p. 446
contrary to the evidence and the law, and upon the grounds speci- " fied-in section 999 of the Civil Code[1] ,”1 was granted, .the verdict vacated and set aside and a new trial ordered 'unless the plaintiff stipulated within five days to reduce the verdict to $500, in which case the motion was denied. The learned trial justice filed a memorandum as follows : This case is a stale and doubtful one, but I have concluded to let the verdict stand if plaintiff stipulates to reduce it to $500,00.” We naturally conclude from the order, read with the memorandum, that the- learned court thought that a verdict for. $500 would be proper. The disposition of the case was a reduction of the verdict. We think that if the damages Were hot excessive the order should "be reversed" and the verdict reinstated. The plaintiff complained that her. right, ar.m Was broken in three places below the elbowthat such injuries were permanent, and that she 'sustained other bruises about the arm'and body, so that she was confined to her home for upwards of four months and suffered severe pain and anguish: It appears from her. testimony that she was thrown to the ground, striking her left hip, and that as she raised her arm to protect her face from the hoof of a kicking-horse.she was kicked in the arm. She was confined three weeks to her bed • and was attended by Drs. Rushmore and Oorbally. 'Her arm was broken in. three places. It was taken out of the splint, examined and replaced in. the splint. She was taken to the hospital and there photographed by X-rays; her arm was then pulled and twisted by the surgeons and put into' plaster, and different applications were thereafter ^made from time to time — a metal splint, a-cardboard splint. and bandages. She also suffered from affliction of- the stomach and liver, which continued at the time of the trial. She was confined to the house for three months and suffered from constant fainting spells. Her arm often pains her when she turns it or attempts to lift a heavy book or the like, and her -fingers are stiff. Di\ John D. Rushmore, an eminent surgeon of this city,, who was the.consultant, found a fracture and a,break .of both bones of the forearm between the wrist and elbow, and he also corroborated in part the plaintiff’s testimony as to her treatment. Dr. Oorbally, the attending physician, testified to the fracture, that she was severely bruised on' the arm and legs and on the thigh, and said
* Code Civ. Proc. § 999,— [Rep.
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that he found “an infernal disturbance;” that congestion of the abdominal organs was developed; “ severe congestion, a severe injury.” He testified that he attended her a year or two “ for this trouble,” which in his opinion was the result of the accident. No medical evidence was offered by the defendant. We think that while the verdict was liberal, it was not so excessive as to justify an interference with a matter which is primarily and peculiarily for the jury. ,
The order should be reversed, with costs,' and the"'verdict reinstated.
Jenks, Hooker and Miller, JJ., concurred ; Rich, J., dissented.
Order reversed, with costs, and verdict reinstated, with costs.