Smith v. Lehigh Valley Railroad — 77 A.D. 47

Majority

p. 47

Porter D. Smith, Respondent, v. Lehigh Valley Railroad Company, Appellant.

(No. 2.)

Headnote

Additional allowance of costs — an action to recover for personal injuries in a collision at a railroad crossing is not extraordina/ry.

An action to recover damages for personal injuries, sustained in a collision at a railroad crossing, may be difficult, but cannot be said to be extraordinary, and, consequently, an extra allowance of costs cannot be granted in such an action. (Code Civ. Proc. § 3353.)

Appeal by the defendant, the Lehigh Valley Railroad Company, from an order of the Supreme Court, made at the Monroe Special

p. 48

Term and entered in the office of the clerk of the county of Ontario on the 2d day of July, 1901, granting the plaintiff an extra allowance of $400, that sum being five per cent of the verdict of $8,000 recovered by the plaintiff.

The action was brought to recover damages for personal injuries sustained by the plaintiff in consequence of a collision at a railroad crossing between one of defendant’s trains and a carriage in which the plaintiff was riding.

Mart/m Oarey and James MeG. Mitchell, for the appellant.

Thomas Raines, for the respondent.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

In order to authorize the granting of an extra allowance, a case must be both difficult and extraordinary. (Code Civ. Proc. § 3253.)

While a railroad crossing accident case may be difficult and require much labor and expense in the trial, such a case cannot be said, in any sense, to be extraordinary. Cases of this kind are very common. Our courts are continually trying them and reviewing them on appeal.

Extra allowances should not be granted in these cases, unless they come clearly within the provisions of the statute.

The verdicts are ordinarily large enough, and create a sufficient burden upon the railroads, without granting extra allowances. In this case the plaintiff is adequately compensated in the verdict and the statutory costs.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

McLennan, Spring and Hiscook, JJ., concurred; Davt, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion denied.