Fowler v. Broadway & Seventh Ave. Railroad — 36 N.Y. St. Rep. 806

Majority

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Nellie Fowler, an Infant, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

Negligence—Damages.

The plaintiff was injured, as alleged, by defendant’s negligence. She was a working girl. She was receiving $30 per month and her board.

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The doctor who attended her was paid $205. She was in bed a month and it was a year before she could earn any thing; during which time she suffered at intervals more or less pain. Held, that a verdict of $1,500 was not excessive.

Appeal from a judgment on verdict.

Boot & Glarh, for app’lts; Tilbtson & Kent, for resp’ti

This action is one brought to recover for personal injuries sustained through the negligence of the defendant. The issue was properly presented to the jury and they found for the plaintiff awarding her $1,500 damages. The defendant appeals and make this point only: “ The defendant contends that upon the whole case a new trial should be granted because the damages awarded by the jury were excessive.”

The learned justice presiding in the court below gave a summary of the plaintiff’s injuries, loss and the elements of damages to the jury in his charge to which no exception was taken. A" perusal of that which is hereto attached is a sufficient answer to the point stated.

If you find for the plaintiff, you will then have to consider the amount of damages. In the form of this complaint on which the action is brought I have held, and I charge you, that the plaintiff can recover only the damage that she sustained prior to the bringing of the action. There is no charge here in the complaint, nor is there any evidence to sustain it, that any injury was occasioned to the plaintiff after the commencement of the action. You are limited, therefore, to the time prior to the 1st of January, 1888. In actions of this kind the amount of damages is left very largely to the discretion of the jury. There are general rules that the courts are able to state, that should apply in determining the damage, but outside of these general rules it is a matter very largely -within your discretion. As I said before the defendant is not to be punished; the plaintiff is not to receive anything except compensation. If the defendant is liable the plaintiff is entitled to fair compensation. There are certain items of pecuniary damage that she claims to have sustained in consequence of this injury. She says that her clothes which she had on cost her seventy dollars, and they were comparatively new, and were totally-destroyed by the glass cutting them and by the blood. If you believe that, she is entitled to recover the value of the clothes, whatever that was. She also says that she incurred certain obligations for doctors’ bills, amounting in the aggregate as I. understand it to about $205. The doctors have testified that was their charge, and' that it was a fair and reasonable charge. The plaintiff also claims that she is entitled to recover the wages she would have earned if she had not been injured. She says she was receiving twenty dollars a month and her board, and that the injury prevented her from earning any wages, as I understand it, for about a year prior to the commencement of the action. Her sister has testified that the board would be worth $2.50 a week, which would be ten dollars a month, which together with the wages would amount to thirty dollars a month.

These items should be taken into account by you, and if the

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defendant is liable, and you believe these obligations were incurred, that her clothes were spoiled, that she would have earned this-money and would have received her board, she would be entitled to recover what she lost up to the time of the commencement of the action. But, in addition to that, she is also entitled to recover compensation, so far as money can compensate a person, for the pain that she has suffered during this time. You have heard her story. She says that for all this period she was unable to work; she was a month in bed; it was the 17th of March before she left the house, and since that time she has always had more or less pain and suffering from the injury. She is entitled to recover a fair sum to repay her for that suffering, if she is entitled to recover at all. It should not be exorbitant, but it should be considering her circumstances in life and her condition and surroundings, the work that she did, and under all the circumstances, in your discretion, you are to say what would be a fair sum to compensate her for the pain she suffered, and generally for the injury which the accident caused her, and adding that to the pecuniary loss which you may believe she suffered in consequence of the injury, you will then find a verdict for the plaintiff for that amount, providing, as I said before, that this accident was caused solely by the negligence of the defendant.

The plaintiff, though an infant, was nineteen years of age, was lacerated, her system shocked, and she was exposed to the results of the injuries received, which might have been serious, according to the medical testimony, and would have been had it not been for the medical skill by which she was treated.

The sum given by the jury would doubtless have been more had it not been for the very careful and conservative charge of the learned court, and it is thought that the defendants have naught to complain of.

The judgment, for these reasons, should be affirmed, with costs.

Yan Brunt, P. J., and Daniels, J., concur.