Crank v. Forty-second Street & Nicholas Ave. R. R. — 25 N.Y. St. Rep. 53

Majority

p. 53

Caroline Crank, Resp’t, v. Forty-second Street and St. Nicholas Ave. R. R. Co., App’lt.

(Supreme Court, General Term, First Department,

Filed July 9,1889.)

Headnote

1. Negligence—Future ailments—Instructions to jury.

In an action to recover damages for injuries sustained by plaintiff by reason of the conductor of defendant’s car being thrown against plaintiff while the car was passing a curve, the court charged that the jury might take into consideration, upon the subject of the permanency of the injury, the plaintiff’s liability to suffer more from other ailments than she would have suffered had it not been for the injury Held, no error, in that it ap

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peared that the results of the accident would he permanent, and if plaintiff was sick from other causes the result of the injury would complicate them.

2. Excessive damages—When verdict not set aside nor.

In a suit for damages for injuries received through defendant’s negli' gence, a verdict for $2,500 will not he set aside as excessive where it appears that plaintiff required medical attendance for some time; that the injuries were permanent, and that plaintiff will be more apt to suffer from other ailments than if she had not met with the injury.

Appeal from judgment entered on verdict in favor of plaintiff at circuit, and from order denying motion for new trial.

W. C. Trull, for app’lt; J. D. Townsend, for resp’t.

This action was brought to recover damages claimed to have been sustained by the plaintiff by reason of the conductor of the defendant’s car being thrown against the plaintiff while the car was passing a curve. The ground upon which the defendant was held liable was that the driver of the car was driving at a rate of speed such as would occasion a jolt and thereby throw the conductor against the person of the plaintiff.

It is conceded that a cause of action was made out, such as entitled the case to be submitted to the jury. But it is claimed that the damages were excessive, and that the learned judge made an error in charging the jury that they might take into consideration, upon the subject of the permanency of the injury, the plaintiff’s liability to suffer more from other ailments than she would have suffered had it not been for the injury.

Although the verdict seems large, in view of the injuries which the plaintiff was shown to have suffered as the result of the accident, yet it is not so excessive as to justify this court in interfering with it.

It appeared that the plaintiff required medical attendance for a considerable length of time, and also that the injury she received was permanent and would affect her during her future life.

Neither does the exception to the charge afford any reason for a reversal. The evidence was sufficient to entitle the jury to come to the conclusion that there was a reasonable certainty that the results of the accident would be permanent; the physician testifying that it would last her as long she lived, and that if she were sick from other causes, the result of this injury would always complicate them. This furnished a ground for the consideration by the jury of the results of the injury. It was permanent, and it would complicate any affection she might suffer from arising from other causes; and therefore the submission to the jury of the question of the plaintiff’s liability to suffer more from other' illnesses than she would have done seems to come within the rules laid down in reference to the effect of injuries where there is a reasonable certainty that they will be permanent.

It is true it may be that the plaintiff will never suffer

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from any other illness, but where the injury^ is of such a character as renders her less able to contend against the ordinary ills which flesh is heir to, it does not seem to be at all speculative to allow the jury to take such a state of affairs into consideration in making compensation to the plaintiff for the injuries received.

The judgment should be affirmed, with costs.

Daniels and Brady, JJ., concur.