Meyer v. Nassau Electric Railroad — 152 A.D. 709

Majority

p. 709

Henry W. Meyer, Respondent, v. The Nassau Electric Railroad Company, Appellant.

Second Department,

October 4, 1912.

Headnote

Damages—negligence — verdict not excessive — evidence — records of hospital.

A verdict of $5,000 in. favor of a person thirty-two years old who, by reason of an injury, became wholly deaf in one ear, and had the hearing of the other impaired from thirty to forty per cent, the condition being progressive so as to probably result in total deafness, while large, is not so excessive as to call upon the court to intervene.

In an action to recover for injuries so caused it is not error for the court to exclude the card record of the hospital where the plaintiff was treated, if the testimony shows that there was an error in the record, and that it was made by persons other than those who examined the plaintiff.

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme 'Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of February, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 6th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.

p. 710

. D. A. Marsh [George B. Yeomans with him on the brief], for the appellant.

. Martin T. Mantón [William H. Griffin with him on the brief], for the respondent.

No question is raised upon this appeal that the defendant negligently operated one of its trolley cars, coming into collision with the plaintiff’s wagon, throwing him out. There is likewise no question of contributory negligence raised, and it is not seriously questioned that the plaintiff received some injuries as the result of the collision. It is urged, however, that the judgment for $5,000 is excessive, and some suggestion of error is made .in reference to the rejection of certain evidence and the refusal of the court to charge a request made by the defendant.

There was evidence in. the cáse that the plaintiff, thirty-two years of age at the time of the- accident, received an injury to his head, manifesting particularly in his right ear, and that he became wholly deaf in that ear within a few days of the accident, and that the hearing- of his left ear shows an impairment of thirty or forty per cent, and that the condition is progressive and will probably result in total deafness. It was likewise shown by competent evidence that the plaintiff could and did hear ordinary conversation at all times prior to his injury, with no manifestation of' impairment of his hearing. The defendant introduced some testimony tending to show that the plaintiff had chronic catarrhal impairment of the inner ear, such as is common in this climate, and that this condition might account to some extent for the deafness, but the jury were carefully instructed upon this point, and we think the evidence is sufficient to establish that the deafness in the right ear is .directly due to the accident, and that the impairment of the hearing of the left ear is due to the same cause, aggravating the previous catarrhal condition. While a smaller verdict might have satisfied this court, the amount is not so far in excess of what reasonable men might properly conclude as to require this court to intervene.

Under the evidence as it stood at the close of the case, we are

p. 711

of the opinion that the court could not properly have charged the request of the defendant that the jury could not award any degree of damages for the impairment of the hearing of the left ear.

We are also of the opinion that it was not error for the court to exclude the card record of the hospital where the plaintiff was treated. The testimony indicates that there was an error in the record; that it was made up by persons other than those who made the examination, and at most it could only have raised a shadow of a doubt as to whether the plaintiff was examined by the physician who was upon the stand, and who testified that he had made such examination. The defendant called the physician who was indicated by the card, and he refused to identify the plaintiff, or to dispute the plaintiff, who declared that he had never seen him before. We think the evidence was properly excluded.

The judgment and order appealed from should be affirmed, with costs.

Present — Hirschberg, Burr, Thomas, Woodward and Rich, JJ.

Judgment and order unanimously affirmed, with costs.