Polak v. Metropolitan St. Railway Co.

This action was brought to recover damages tfor personal injuries sustained by plaintiff, while a passenger on •one of defendant’s cars, through the defendant’s carelessness and negligence. The defense is a general denial of the plaintiff’s cause of action. The defense on the trial offered no evidence whatever, «called no witnesses, and made no motion to dismiss, but went to the jury purely on the question as to the amount of damages which the plaintiff might be entitled to recover. The jury rendered a verdict of $1,750. This verdict defendant claims to be excessive. We do not agree with its contention, considering the evidence in -relation to plaintiff’s injuries, so well recapitulated in respondent’s' points. In cases of this class the question of the measure of damages is the prerogative of the jury to pass upon, and the court, on appeal, has no right to disturb their conclusion, unless it is in some way made to appear- quite manifestly that the result was reached «through passion, prejudice, or corruption. Swoboda v. Railway Co., 22 Misc. Rep. 8 , 48 N. Y. Supp. 612 .

Error is claimed by defendant to have been committed by the .trial justice in the denial of a “motion to strike out the value of the ■doctor’s, services, on the ground that it is not recoverable in this -action, as it appears that the father of this young lady stands by her still, in loco parentis, and the medical service is something that he can recover for.” The young lady was over 21 years of age ■at the .time of the accident, and was 24 years of age at the time of the trial, and was always living with her parents. The doctor had testified that his services were worth $250, that he treated the family, and that those services were billed to the father separately, who paid on and off; that he had not yet been paid that amount; and that he believed he was paid nearly all. The court, in denying the motion, said, “I will deny the motion, but she cannot recover for it here.” At the close of the case we find that defendant’s counsel moved as follows:

“I will ask your honor to charge the jury that in this case there is no evi•dence of -payments to physicians sufficient for them to give any recovery for ■medical service. The Court: I will so charge. And again: Defendant’s -counsel: I will also ask your honor to charge that the doctor’s hills are eliminated from this case. The Court: I will so charge the jury.”

If an error was committed in the denial of said motion, it was .surely cured by these subsequent charges. Besides, there is no ■evidence in the case from which it can be concluded that the plaintiff could not recover for the medical services rendered to her by the doctor.

Judgment and order appealed from affirmed, with costs. All «concur.