Kelly v. City of Rochester — 38 N.Y. St. Rep. 797

Majority

p. 797

Hugh Kelly, Resp’t, v. The City of Rochester, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 2, 1891.)

Headnote

Negligence—Inadequate damages

In an action to recover damages for negligence of a corporation in permitting a sidewalk to become unsafe from ice upon which, plaintiff fell and was injured the jury found for the plaintiff and awarded damages of fifteen dollars. The undisputed evidence showed that the plaintiff fractured two ribs, suffered pain and was disabled for several months. Held, that the court properly set aside the verdict upon the ground that the damages were inadequate.

Appeal by the defendant from an order made on the minutes of the court at the circuit, granting a new trial to the plaintiff on payment of the costs of the circuit (Monroe, June, 1888.)

H. J. Sullivan, for app’lt; E. L. Adams, for resp’t.

The new trial was granted on the ground of the insufficiency of the damages awarded by the verdict of the jury. The action was for injuries resulting to the plaintiff from a fall on a sidewalk of the defendant, rendered unsafe by ice which the defendant negligently suffered to accumulate thereon. The two issues of the defendant’s negligence and of contributory negligence on the part of the plaintiff, were fully tried and were submitted to the jury, on the second day. of the trial, and the jury having been out all night came into court on the third day and rendered a verdict for the plaintiff, for fifteen dollars.

The undisputed evidence on the question of damages, showed) that the plaintiff, as a result of his fall, sustained a fracture of’ two ribs; suffered great pain in his side at the time and for some.

p. 798

months afterwards; was wholly disabled for labor for several months and that the pain and disability continued, in a measure, down to the time of the trial. There was also evidence tending to show that a weakness of the kidneys and incontinence of urine from which the plaintiff had suffered from a time shortly after the accident and down to the time of the trial, was due to the same cause.

The verdict of the jury found both the issues tried, in favor of the plaintiff, and that finding entitled him to full compensation for the injury which he had sustained. For that purp®se the verdict was grossly inadequate and must have been the result of unworthy and improper considerations prevailing with the jury. The discretion of the trial court was correctly exercised in setting aside the verdict and granting a new trial to the plaintiff. The terms imposed as a condition of the order were also, probably, within the discretion of the court, and no appeal has been taken from that part of the order.

The order appealed from must be affirmed and, under the discretion granted to the appellate court by § 3239 of the Code, with costs, absolutely, to the respondent

Macomber, J., concurs.