Kane v. Manhattan Railway Co. — 3 N.Y. St. Rep. 145

Majority

p. 145

Bernard Kane, Resp’t, v. The Manhattan Railway Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed July 23, 1886.)

Headnote

Assault—Personal injury—Loss of time an item of damages—Erroneous CHARGE TO JURY.

In an action for damages for an assault it is error for the court to charge the jury that they might allow plaintiff for loss of time consequent upon the assault where there was no evidence as to what the time was worth.

Anthony Barrett, for resp’t; Davis & Bapallo, for app’lt.

It is beyond question that the plaintiff made out a case proper to submit to the jury. The charge of the court was eminently fair on the main issue, but in response to the request of the plaintiff’s counsel the court charged that the jury might allow plaintiff for loss of time consequent on the assault. To this, defendant excepted on the ground, there was no evidence what the time was worth. We can find no evidence of that fact in the case, hence the charge in this respect was erroneous. Leeds v. Metropolitan Gas Light Co., 90 N. Y., 26 . Though the error was doubtless a mere inadvertence, we cannot say that it did not prejudice the defendant.

The judgment must be reversed, and a new trial ordered, costs to abide event.

Dykeman, J., concurs ; Barnard, P. J., dissents.