French v. Brooklyn Heights Railroad — 57 A.D. 204

Majority

p. 204

Alonzo French, Respondent, v. Brooklyn Heights Railroad Company, Appellant.

Headnote

JExcessive verdict •— '■.ihen §400 is not «=» examination of the person of a party injured, not required of the. court.

An award of §400 to a man seventy years of age for a painful injury to his Side, sustained by him in consequence of the- sudden starting of a railroad car, will not be set asi.de as excessive where it appears that he was able to maintain himself previous to the accident, but thereafter was unable to work, and that he was in-pain at the time of the trial, which occurred three months after the accident.

p. 205

The refusal of the court to make a personal inspection of the person of the plaintiff, in order to determine a dispute between opposing medical experts, is not a ground for the reversado! a judgment in favor of the plaintiff.

Appeal by the defendant, the Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, in favor of the plaintiff, rendered on the 26th day of November, 1900, upon the decision of the court.

Sheeham, c& Gollrn,, -for the appellant.

Sanders ShamJcs, for the respondent.

The appellant practically concedes upon this appeal a liability, but urges that there was no evidence to warrant an award of $400, and that the trial court erred in refusing to inspect the plaintiff physically. The evidence, which is undisputed, shows that the plaintiff, a man seventy years of age, while attempting to get on one of the cars of the defendant at the New York end of the Brooklyn Bridge, was thrown down and sustained a painful injury to his side by the sudden starting of the car. Plaintiff was engaged in selling glassware on commission for several different houses, but there was no evidence of his earning power,' except that it may be inferred from the testimony that he had been able to care for himself. After the accident he went to a hospital in New York, where the doctor prescribed the use of a liniment, and subsequently he entered the hospital of the Kings county almshouse, where he remained' for a period of about two months, because, being unable to work, he had nowhere else to go. He testified that' he was in pain from this injury at the time of the trial of the action, which occurred some three months after the accident. There was a conflict of evidence upon the question of whether the plaintiff’s side showed a depression at the point of contact, indicating a continuation of the difficulty, and the amount of the judgment indicates that the trial ■court found in favor of the plaintiff’s contention upon this point. Taking this view of the case, we are not prepared to say that $400 is an excessive judgment, and we do not conceive it to be error on the part of the trial court to refuse to make examination of the

p. 206

plaintiff’s person. The burden of establishing the injury was upon the plaintiff, and we are satisfied that there was evidence sufficient to support the decision of the court below, and that the defendant had no right to demand that the court' examine the plaintiff to determine a dispute between opposing doctors. If there are any authorities in support of this contention, defendant’s counsel have not called the attention of the court to them, and in the absence of such' authorities the judgment of the court below should be affirmed.

The judgment appealed from should be affirmed, with costs.

Judgment of the Municipal Court unanimously affirmed.