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Swan v. Long Island Railroad

33 N.Y.S. 190 Court N.Y. Gen. Term Decision date 1895-04-11 English

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p. 190
(86 Hun, 265.)
SWAN v. LONG ISLAND R. CO.
(Supreme Court, General Term, First Department.
April 11, 1895.)

Headnote

Appeal— Reversal—Excessive Verdict.
Where a verdict is set aside as excessive, and on the second trial a larger verdict is rendered than before, though the evidence is no stronger, it will be again set aside on appeal.
Appeal from circuit .court, New York county.
p. 191
Action by Edward H. Swan, Jr., against the Long Island Railroad Company, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
Reversed.
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
W. C. Beecher, for appellant.
Wilhelmus Mynderse, for respondent.

Upon this last trial, plaintiff recovered a verdict for $20,538.07. On the former trial the jury awarded the plaintiff $12,500, and this court decided that that was excessive. Swan v. Railroad Co. (Sup.) 29 N. Y. Supp. 337 . It is not claimed by the respondent that the present case, in any of its essential features, is stronger in favor of the plaintiff, upon the question of damages, than that presented by the former record on appeal; and while an examination of the record confirms the claim, by reason of the time that has elapsed, that the injuries were serious, we regard the case as not quite so strong for plaintiff as upon the first trial. Upon the second trial no evidence was given of doctors’ bills, nor was there anything to show how plaintiff’s injuries had affected his ability to get about and enjoy himself, upon both of which points evidence was presented at the former trial. In this state of the record, consistency requires that the judgment, which, upon similar evidence, is almost double the one that was set aside as excessive, should not be affirmed. Unless, therefore, the plaintiff will stipulate to reduce the verdict to $10,000, it should be reversed, and a new trial ordered, with costs to abide the event.