De la Torre v. Metropolitan Street Railway Co.

Majority

p. 126

Rosa De la Torre, Respondent, v. Metropolitan Street Railway Company, Appellant.

Headnote

Negligence—when a verdict of six cents for the plaintiff will be set aside..

Where the plaintiff in an action brought to recover damages for personal injuries, sustained by the alleged negligence of the defendant, introduces evidence tending to show that she was rendered unconscious by the accident, and for several days thereafter was in a high state of excitement and during a portion of the time in a delirious condition ; that for at least two weeks she was unable to leave the house, and that her physician had made a charge of $150 for his services, a verdict in favor of the plaintiff for six cents will be set aside ; as the jury, having necessarily found that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence, should have awarded to her such a sum as would compensate her for the injuries which she had sustained and for the expenses incurred by reason thereof.

Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 28tli day of June, 1899, setting aside the vérdict of a jury in favor’ of the plaintiff for six cents, and granting a new trial.

Charles F. Brown, for the appellant.

William C. Reddy, for the respondent.

This action was brought to recover damages for personal injuries alleged to have been sustained by reason of the defendant’s negligence.

The plaintiff, upwards of sixty-four years of age, on the 7th day of August, 1896, in alighting from one of the defendant’s cars, either fell, or was, by the sudden starting" of the car, thrown to the street and injured.

The plaintiff claimed that having signified to the conductor her desire to leave the car, it came to a full stop, arid while she was. in the act of stepping therefrom it was suddenly started, and by reason thereof she was thrown down and injured. On the other hand, the

p. 127

defendant claimed that the plaintiff stepped from the car while it was in motion and before it had come to a stop.

As to the plaintiff’s injuries the testimony introduced on her part tended to show that she was seriously injured; that immediately after she was thrown to the street she was picked up unconscious and in that condition carried to her home; that after regaining consciousness she was on the day of the accident, and for several days thereafter in a high state of excitement, and during a portion of the time was in a delirious condition ; that for at least two weeks she was unable to leave the house ; that a physician was called immediately following the .accident, and that he attended the plaintiff for a considerable length of time, for which he charged $150.

The jury rendered a verdict for the plaintiff for six cents, which the trial court set aside and granted a new trial upon payment of the costs and necessary disbursements, and the defendant has appealed. . ■

We think the order should be affirmed. The jury, in rendering a verdict for the plaintiff, necessarily reached the conclusion that her injuries were caused by the negligence of the defendant, and that her own negligence did not in any way contribute to them. If these facts -were established in her favor, she was entitled to recover such sum as would' compensate her for the injuries which she had susr tained and for the expenses incurred by reason of them.

The learned trial justice, therefore, very properly set aside the verdict and directed that the issues involved be submitted to another jul7-

The order appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with costs.