Hyperlawhypertext legal database De Noyelles v. Joline 116 N.Y.S. 662

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De Noyelles v. Joline

116 N.Y.S. 662 Court N.Y. App. Term Decision date 1909-05-07 English

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p. 662
DE NOYELLES v. JOLINE et al.
(Supreme Court, Appellate Term.
May 7, 1909.)

Headnote

Damages (§ 185[1] )—Personal Injuries—Evidence—Award.
In an action by a street car passenger for personal injuries, evidence held insufficient to justify an award of $250 damages.
[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 502-514; Dec. Dig. § 185.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Anna De Noyelles against Adrian H. Joline and another, as receivers of the New York City Railway Company. From a judgment for plaintiff, defendants appeal.
Reversed, and new trial ordered, unless plaintiff stipulates to reduce the recovery.
Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.
Anthony J. Ernest, for appellants.'
Foley & Powell, for respondent.

Plaintiff, while upon one of defendant’s cars, claims she was struck upon the head by an iron bar attáched to the fare register apparatus, which fell while the conductor was ringing up fares. She proceeded on her journey to a recreation pier, but, feeling pain from the blow, returned home with her child. She says she suffered, called in a doctor, by whom she was treated, and" remained home three days. She is a cleaner in the Evening Post Building, and says that for quite a period she was so incapacitated that she had to have assistance. What her wages were, or what she paid others, does not appear. No claim is made for doctor’s services. Her son, a young boy, corroborated her being struck by this bar, which was of a size to cause injury. Defendant’s conductor testified that the bar fell, but did not strike plaintiff, and that plaintiff did not complain of being struck. The court, without a jury, gave judgment for $250. The evidence justifies some recovery, but we are of opinion that the amount awarded was excessive on the proofs.

The judgment is reversed, and a new trial ordered, with costs to

p. 663
appellant to abide the event, unless the plaintiff stipulates within five days to reduce the recovery by deducting the sum of $125 from the same, leaving her recovery $125 and costs in the court below, but without costs in this court, in which event the judgment, as modified, is affirmed.