Schreiber v. Village of Depew — 137 A.D. 433

Majority

p. 433

Martha Schreiber, Respondent, v. The Village of Depew, Appellant.

Fourth Department,

March 9, 1910.

Headnote

Damages—negligence — verdict not excessive — pleading—amendment of complaint at trial.

A verdict of §3,500 is not excessive where the plaintiff received a Colies fracture of the forearm, disfiguring her hand and wrist, and to some extent permanently impairing their usefulness-

The trial court has power to allow an amendment to the complaint increasing the damages demanded if the plaintiff excuses the failure to apply for' the amendment before trial.

But a judgment entered on a moderate verdict will not be reversed because of an amendment at' trial increasing the damages demanded where the defendant also availed itself of permission to amend the answer.

• Appeal by the defendant, The Village of Depew, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 2d day of June, 1909, upon the verdict of a jury for $2,500, also from an order entered in said clerk’s office on the 15th day of July, 1909, amend: ing the complaint so as to increase the amount of damages asked, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

S. Jay Ohart, for the appellant.

John O. Hubbell [Merman Van Peyma with him on the brief], for the respondent.

The action is to recover damages for. personal injuries resulting . from a fall upon a defective sidewalk. On the evening of October 25, 1906, the plaintiff and her daughter were walking side by side upon the sidewalk in question... The sidewalk consists of boards or plank, laid crosswise upon stringers. These had been nailed to the stringers, but the walk had become old and rotten and the nails loose. The daughter stepped on one end of a board; the other end flew up and tripped the plaintiff and she fell.

She had a Oolles fracture at the lower end of the right radius, which is the important bone of the forearm and rotates the hand. Her wrist and hand have been disfigured, and their usefulness to some extent permanently impaired ; she has been unable to do her usual housework, and has not the control of her thumb or the normal strength of her wrist.

Plaintiff had a verdict of $2,500. I think it is none too large.

I have no doubt of the liability of the village, and the only question which calls for discussion is that arising out of the amendment of the complaint upon the trial of the action.

The complaint was amended by increasing the amount of the ■ damages from $1,000 to $2,500. A formal order amending the complaint was entered, hut the defendant was also permitted to amend its answer, which was likewise embodied in the same order. The application to amend the complaint was made after the plaintiff had rested and the defendant had opened its case. Plaintiff’s counsel then stated that if it was permissible to amend the complaint to increase the amount of the damages asked, he would move that the complaint be amended by demanding $2,500 damages . "instead'of $1,000. There was no suggestion of surprise or excuse for not having made the application to amend the complaint before ■proceeding to trial. While the trial court undoubtedly had power to allow the amendment, such an application should ordinarily not' be granted.without showing proper grounds therefor, and excusing the failure to make the application before trial. We have had occasion recently to pass upon the' question in a similar action, and the judgment was reversed and a new trial granted for allowing just such an amendment. (Kenney v. South Shore Natural Gas & Fuel Co., 126 App. Div. 236 .)

p. 435

In this case, however,' the defendant’s answer was also amended, and the defendant had whatever benefit the order gave it in that respect. Under these, circumstances, and in view of the fact that the. damages awarded do not seem to be excessive, I think the verdict should be permitted to stand.

The judgment and order should, therefore, be affirmed, with costs.

- All concurred.

Judgment and order affirmed, with costs.