Gottheim v. Nassau Electric Railroad — 111 N.Y.S. 678

Majority

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GOTTHEIM v. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Term.

June 30, 1908.)

Headnote

Damages—Personal Injuries—Profits—Evidence.

Plaintiff in an action for injuries testified, that he was an employing tailor, having a stock of cloth and materials; that he paid rent for his store and gave his personal attention to the business, cutting, trying on, taking orders, and giving out work; that his average profits were $40 a week; and that he was absent from his business five weeks. There was no evidence of the cost of the rent or the amount of capital invested. Held, that the evidence related to profits, and not to the value of plaintiff’s personal services, and was therefore too speculative and conjectural to form a basis of recovery for loss of earnings.

[Ed. Note..—For cases in point, see Cent. Dig. vol. 15, Damages, § 509.]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Harris Gottheim against the Nassau Electric Railroad Company. From a Municipal Court judgment for plaintiff, defendant appeals.

Reversed, and new trial ordered.

Argued before GIEDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.

George D. Yeomans (A. M. Williams, of counsel), for appellant.

Grauer & Rathkopf, for respondent.

The plaintiff in this action to recover for personal injuries testified that he was a tailor, employing three men at the time of the accident, who averaged $15 per week profit, that he had a stock of cloth and materials to make suits of, that he paid rent for his store, and that he gave his own personal attention to the business, cutting, trying on, taking orders, and giving out work and over objection and exception testified that his average profits were $40 each week. He had already testified to the sum of $45 for medicines and medical services, as he testified to an absence of five weeks from business. In the charge to the jury the court, among other things, said:

p. 679

“If you do find for him, you must not find any less than the sum of $170, the amount that is figured up already; and you can award him damages for pain and suffering for any amount additional, from $1 up to $330.”

Exception was taken thereto by the defendant. There being no evidence of the cost of rent or of the amount of capital invested, the evidence of the amount of loss of profits is too speculative and conjectural. The evidence disclosed related to profits, not to the value of the personal services of the plaintiff, and so was improperly received and assumed. The judgment should therefore be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.