Mitchell v. Broadway & Seventh Avenue Railway Co.

Majority

p. 32

(70 Hun, 387.)

MITCHELL v. BROADWAY & S. A. RY. CO.

(Supreme Court, General Term, First Department.

June 30, 1893.)

Headnote

Personal Injuries—Excessive Damages.

In an action by an unmarried woman, 27 years old, for personal injuries, it appeared that she received a fracture resulting in shortening her leg and stiffening her ankle, and that she expended $1,000 for surgical services. It did not appear that the trial was conducted in a manner likely to arouse the sympathy or prejudices of jurors, and they were told to return such sura as would simply compensate plaintiff for her injuries. Held that, while a verdict for $15,000 was large, and one for a smaller sum would have been more satisfactory, it should not be set aside on appeal as excessive.

Appeal from circuit court, Yew York county.

Action by Jeanie Mitchell against the Broadway & Seventh Avenue Railway Company for personal injuries caused by defendant’s negligence. Plaintiff, an unmarried woman, 27 years old,

p. 33

was knocked down by one of the horses attached to defendant’s street car, and run over. Her injuries consisted in a multiple fracture of the lower third of both bones of the lower left leg, which resulted in a shortening of the leg and a stiffening of the ankle. From a judgment entered on a verdict in favor of plaintiff for $15,-000, and from an order denying its motion for a new trial, defendant appeals.

Affirmed.

Argued before O’BRIEH, p. J,, and FOLLETT and PARKER, JJ.

E. Root, for appellant.

S. 0. Baldwin, for respondent.

The defendant concedes its liability for the injuries sustained by the plaintiff, and argues no exception but the one taken to the refusal of the trial court to set aside the verdict as excessive. The evidence shows that the plaintiff was severely and permanently injured, has suffered great pain in the past, and that she will probably continue to suffer during life. The testimony of the plaintiff, and of her physicians, as to the extent of her injuries and suffering, was not contradicted on the trial. There is no evidence in the record which tends to show that the trial was conducted in a manner likely to arouse the sympathy, prejudices, or passion of the jurors. The charge was temperate, and the jury was instructed to return such a sum as would simply compensate the plaintiff for the injuries sustained. It appears that she necessarily expended about $1,000 in the employment of physicians and surgeons by reason of her injuries. While we regard the verdict as large, and should have been better satisfied had a less sum been awarded, we do not, under the circumstances, feel justified in setting it aside. Had the trial been so conducted as to arouse prejudice or passion against the defendant, we would be justified in ordering the damages to be reassessed, in case a reduction should not be assented to. But upon the whole record we think the power should not be exercised in this case, and that the judgment and order should be affirmed, with costs.