Majority
p. 179KALFUR v. BROADWAY FERRY & M. AVE. R. CO. (23 Misc. Rep. 417.) (Supreme Court, Trial Term, Kings County. April, 1898.)
Headnote
Damages—Excessive Verdict.A boy IS months old received injuries resulting in the loss of his leg below the knee. Held, that a verdict of $15,000 was not excessive.
Action by Frederick Kalfur, an infant, against the Broadway Ferry & Metropolitan Avenue Railroad Company. Motion to set aside a verdict for the plaintiff as excessive.
Motion denied.
C. J. Patterson, for plaintiff.
T. S. Moore, for defendant.
The plaintiff, a boy eighteen months old at the time of the injury, lost his leg below the knee. The verdict was for $15,600. If $2,500 be allowed his counsel, and the remaining $12,-500 be invested, and the income thereof be invested and accumulated, until the plaintiff come of age, he would then have a sum of about $20,000. This would insure him an income of $800 or $1,000 a year, (which is about as much as we may fairly presume he would earn if whole), and leave the said sum of $20,000 intact at his death. This leaves out of account his earnings; and whether they are to be less for the loss of his foot, depends on the avocation he may select. If he
p. 180
become a lawyer, doctor, clergyman, clerk or merchant, for instance, Ms earning capacity will not be lessened by the use of an artificial foot. If he is to do certain kinds of manual work, it will be; but the income from the said sum wall be as much or more than he could earn in wages if whole. I had an opinion growing out of my own view and discretion, in respect of whether the verdict Tie excessive. But that is not what must control me. Counsel have furnished me with a list of the cases in which such verdicts have and have not been reduced. Verdicts as large and larger for like injury have been upheld, as a rule, though it is true some have been reduced. Exercising my discretion in the light of precedent, and constrained thereby, I must deny the motion to reduce. Trial judges were never so reluctant to exercise any discretion whatever as they are at present, for reasons that are growing obvious to the bar. They do not have things presented to them under the disguise of print, and with academic afterthoughts and refinements, but in their everyday reality, just as they are generally seen and understood. Discretion exercised under these different conditions cannot in the nature of things be the same.
Motion denied.