Brooks v. Ludin — 25 N.Y. St. Rep. 820

Majority

p. 820

William Brooks, App’lt, v. Susan A. Ludin, Resp’t.

(New York Superior Court General, Term,

Filed June 28, 1889.)

Headnote

Appeal—Weight op evidence.

In an action for damages for personal injuries, an order denying a motion to set aside a verdict for inadequacy of damages, will not be disturbed on appeal, where the evidence was conflicting.

Appeal from a judgment entered on the verdict of a jury at a trial term, and from an order of the special term denying plaintiff’s motion for a new trial on the ground of the insufficiency of the verdict.

Alexander Thain, for app’lt; Devo, Duer & Bauerdorf, for resp’t.

There was no exception taken at the trial which entitled the appellant to a reversal of the judgment. The opinion of the learned judge denying the new trial for the insufficiency of the verdict was plainly correct. Besides the right of the jury to determine that the extent of the plaintiff’s injuries, and their effects, had been exaggerated by him in his testimony, and to duly weigh the testimony of the plaintiff’s physician on the same points, there was testimony on the side of the defendant as to incidents and appearances that, if believed, would require the jury to consider that the plaintiff’s testimony was not accurate.

The learned counsel thinks that, at least, the verdict should have been as large as the medical expenses of the plaintiff, as sworn to by himself and his physician. The jury, however, was not bound to find for the face of the bill, rendered. The case was not serious and the treatment was simple. Eight dollars a visit was charged. But the physician, and no other witness, testified that the charge

p. 821

was reasonable or customary. The bill has not been paid, by plaintiff. The jury were bound to give only such damages as were proved.

Judgment and the order appealed from affirmed, with costs.

All concur. _