Majority
p. 819(20 Misc. Rep. 171.) KERR v. UNION RY. CO. (City Court of New York, General Term. April 28, 1897.) Argued before VAF WYCK, C. J., and MCCARTHY, J.
Headnote
Nominal Damages—Injury to Property.A verdict for only nominal damages to plaintiff’s buggy cannot be sustained where the evidence shows that he was entitled, if at all, to a substantial sum for the cost of repairs and loss of the use of the buggy.
Appeal from trial term.
Action by John Kerr against the Union Railway Company for injuries to plaintiff’s buggy. From a judgment entered on a verdict in favor of plaintiff for nominal damages, plaintiff appeals.
Reversed.
Lyman W. Reddington, for appellant.
Hoadly, Lauterbach & Johnson, for respondent.
Fo complaint can be made to either the trial judge or the charge of the trial justice. The verdict for six cents and the judgment must be set aside, however, on the ground of inadequacy of damages. McDonald v. Walter, 40 N. Y. 551 ; Kelly v. City of Rochester (Sup.) 15 N. Y. Supp. 29 . In an action for damages for slander, malicious prosecution, and such like, a jury can find six cents damages, but in an action like the one at bar, and on
p. 820
the evidence presented, when once the jury determine in favor of the plaintiff, the measure of damages must be based on-the evidence, and not on outside speculation. The evidence was that the plaintiff had spent in repairing the wagon $61.25, and that the actual damages, all told, were between the sum of $75 and $100, and that he was deprived of the use of the wagon a month or a little more. The jury must find for some sum based on the evidence. This they did not, and the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.
VAN WYCK, C. J., concurs.
Cases cited
- McDonald v. Walter 40 N. Y. 551 p. 819