p. 402moving of the train would be sufficient to set the car box moving laterally, and cause the dump. The evidence disclosed that it was in consequence of these hooks becoming detached that the car box slid laterally as the train was moving, and thus caused the accident. The contention on the part of the plaintiff is that this apparatus' was insecure, and that the construction of the car was in this regard genetically defective. There is some evidence in the case on the part of the plaintiff tending to show that one of these hooks had been slightly straightened, thus rendering it less secure than it would have been, if the hook had been as originally intended. While the witnesses on the part of the plaintiff and defendant all agree as to the general construction of this car, there is a marked difference in their testimony as to whether or not it was the best or most approved method of constructing cars for the purpose for which these cars were used, and there is some evidence tending to show that the defendants at this time were using cars for this purpose of a different construction. The controversy in this case turns largely upon the sufficiency of this method of construction of cars, and the condition of this particular car as to the hook which was intended to hold the body in place. The theory of the plaintiff was that this accident occurred by reason of the defect in the car, while the contention of the defendant is that the accident resulted from some negligence on the part of plaintiff’s coemployes in not adjusting the hook before the starting of the train; and this difference was sharply contested by the evidence on either side. There is no evidence of negligence by the plaintiff offered by the defendant which tended to produce the injury complained of.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.R. A. Parmenter, for appellant.
Lansing & Cantwell, (James Lansing, of counsel,) for respondent..
The principal question in this case was whether this car was such a reasonably safe car for the plaintiff to work upon as the employer is required to furnish for the use of its employe. This question, as this case was tried, was one of fact, under the evidence, which the jury were called upon to decide, andi, as the evidence was conflicting, it became their duty to settle that controversy, and, there being sufficient evidence in support of the plaintiff’s theory to uphold the verdict, this court should not interfere with their determination, unless there is something in the amount of the verdict calculated to show that the jury were influenced by prejudice or passion. It is urged on the part of the defendant that the verdict was excessive, and the. defendant moved to set it aside on that ground on the trial. We do not think the refusal of the learned trial judge to set aside the verdict as excess-r\ e was erroneous. The plaintiff was a man in good health, about 56 years old, and was earning at the time of the accident about $2 per day. The evidence discloses that the injury is of a permanent character, and that the plaintiff, by reason of it, is rendered practically unable to perform manual labor. Upon the evidence, assuming that the jury were right in finding that the injury was the result of defendant’s negligence,' .we cannot see that the verdict of '$1,000 was excessive. There were some exceptions taken by the defendant to the ruling of the judge in the reception and rejection of evidence taken upon the trial, and to the judge’s charge to th»
p. 403jury. We have examined these exceptions, and see no error committed by the learned judge for which this judgment should be reversed. Judgment affirmed, with costs.