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McLoughlin v. Brooklyn Heights R.

132 N.Y.S. 568 Court N.Y. App. Div. Decision date 1911-12-21 English

Delivered by *569 RICH, J.

Contents

Majority

p. 568
McLOUGHLIN v. BROOKLYN HEIGHTS R. CO. DANIELS v. BROOKLYN HEIGHTS R. CO.
(Supreme Court, Appellate Division, Second Department.
December 21, 1911.)

Headnote

Damages (§ 185[1] ) — Personal Injuries — Evidence — Sufficiency.
In actions against a street railway company for injury to passengers in a collision between cars, evidence held to warrant a finding that plaintiffs sustained actual damages.
[Ed. Note. — For other eases, "see Damages, Dec. Dig. § 185.[1] ]
Jenks, P. J., and Burr, J., dissenting.
Appeal from Trial Term, Kings County.
Actions by May McRoughlin, by Margaret Mitchel, her guardian ad litem, and by Carrie Daniels, by Hannah Noonan, her guardian ad litem, against the Brooklyn Heights Railroad Company. Judgments denying their motions for new trials, and plaintiffs appeal. Reversed, and new trials granted.
Argued before JENKS, P. J., and HIRSCHBERG, BURR, CARR, and RICH, JJ.
A. R. Pincoffs (Edward D. O’Brien, on the brief), for appellants.
D. A. Marsh, for respondent.

These appeals are by plaintiffs from a judgment in favor of the defendant in each of the two cases which were tried together. The plaintiffs were passengers on a trolley car operated by the defendant which collided with another of defendant’s cars. The actions are based on the negligence of the defendant in the operation of these cars, and upon the trial the defendant admitted its liability in both cases. The plaintiffs each testified to the injuries received and the attendant consequences. Their testimony is corroborated by their physician, and is not contradicted nor are they in any manner impeached. While the plaintiffs may have exaggerated and magnified their injuries, the evidence is such as to entitle each to recover something by way of damages. Levine v. Brooklyn, Queens Co. & Suburban R. R. Co., 134 App. Div. 606 , 119 N. Y. Supp. 315 .

The judgment and order must be reversed and a new trial granted, costs to abide the event.

HIRSCHBERG and CARR, JJ., concur. JENKS, P. J., and BURR, J., dissent on the ground that the jury was justified in finding that plaintiff sustained' no actual damage, and a court will not reverse for the sake of nominal damages. The Levine Case, cited in the prevailing opinion, was a "nonsuit, and there was uncontradicted evidence of actual damage. In the case at bar the extent of the injury was disputed.