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Sullivan v. Metropolitan Street Railway Co.

66 N.Y.S. 609 Court N.Y. App. Div. Decision date 1900-11-09 English

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p. 609
SULLIVAN v. METROPOLITAN ST. RY. CO.
(Supreme Court, Appellate Division, First Department.
November 9, 1900.)

Headnote

Street Railroads — Personal Injuries — Earning Capacity — Excessive Damages.
Where the injury sustained by plaintiff from being knocked down by one of defendant’s street cars did not affect his earning capacity, and prevented him from performing his customary duties only for a few weeks, a verdict for $4,965 was excessive.
Appeal from trial term, New York county.
Action by Timothy J. Sullivan against the Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.
Affirmed in case plaintiff stipulated to reduce the verdict, otherwise reversed.
For former opinion, see 56 N. Y. Supp. 88 .
Argued before VAN BRUNT, P. J., and HATCH, RÜMSEY, MCLAUGHLIN, and INGRAHAM, JJ.
Charles F. Brown, for appellant.
Thomas P. Wickes, for respondent.

The plaintiff had a verdict for $4,965 for personal injuriés sustained by reason of defendant’s negligence. After a careful consideration of the record before us, we find no error sufficient to call for a reversal of this judgment, but we think the sum awarded is largely in excess of the damages sustained by him. The evidence introduced upon the trial does not show that his injuries have affected, or will affect, to any great extent, his earning capacity. Prior to the injury he received $35 per week, and subsequent thereto he received $40 per week, and it was further made to. appear by the evidence that the injuries were such that they only prevented him from performing his accustomed work for a few weeks. Under such circumstances, we think a verdict of $4,965 ought not to stand. Therefore, the judgment and order denying the motion for a new trial are reversed, and a new trial is granted, with costs to the appellant to abide the event, unless the plaintiff shall stipulate to reduce the damages recovered to $2,965; and, if such reduction be made, then the judgment as thus reduced and the order denying the motion for a new trial are affirmed, without costs to either party.