Majority
p. 327(27 Misc. Rep. 502.) SYMONS v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Term. May 24, 1899.) Argued before FBEEDMAN, P. J., and MacLEAN and LEVEN- . TBITT, JJ.
Headnote
Damages—Personal Injuries—Evidence.In an action for personal injuries, evidence as to average earnings for a reasonable time before and after the injury is competent on the measure of damages, it appearing that defendant, a commercial traveler, missed his first fall trip in his business, and suffered pain for a year.
Appeal from city court of New York, general term.
Action by Samuel Symons against the Metropolitan Street-Bailway Company. There was a judgment for plaintiff, and defendant appeals.
Affirmed.
Henry A. Bobinson, for appellant.
Julius Lehmann, for respondent.
This is an appeal from a judgment of the general term of the city court affirming a judgment entered upon the verdict of a jury awarding the plaintiff the sum of $650 as damages for a violent and brutal attack made upon him in August, 1896, by an employé of the defendant. The only substantial question involved
p. 328
in the appeal relates to' the admission of testimony at the trial as to plaintiff’s earnings during the years 1895, 1896, and 1897. The cáse shows that there was evidence as to plaintiff’s condition in life, and as to his business, which was that of a commercial traveler in the wholesale line, and that in consequence of the injuries inflicted upon him he had missed the first fall trip in his business in the year 1896 as a commercial traveler,, and that he suffered pain from the injuries received for about one year. Upon the whole, a proper foundation was laid for the introduction of evidence as to the earnings referred to, and such evidence was properly admitted under the decision of the eoúrt of appeals in Ehrgott v. City of New York, 96 N. Y. 264 . True, the decision was made with reference to average earnings before the injury, but upon the same principle evidence is admissible as to average earnings for a reasonable subsequent period. Moreover, the evidence as to subsequent average earnings was neither sufficiently objected to nor did it prejudice the defendant, but was beneficial to it, for it showed that during the last six months of 1897 the plaintiff earned more than he had earned before the injury. The judgment should be affirmed.
Judgment affirmed, with costs to respondent.
MacLEAN, J., concurring. LEVENTBITT, J., taking no part
Cases cited
- Ehrgott v. Mayor 96 N. Y. 264 p. 328