Kellow v. Long Island Railroad — 42 N.Y. St. Rep. 813

Majority

p. 813

Joseph Kellow, Jr., Resp’t, v. The Long Island Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Negligence—Damages.

In an action for personal injuries the negligence was admitted and the only question was one of damages. By a collision of defendant’s trains plaintiff’s wrist was sprained and his right leg injured so that he suffered constant pain, was confined to his room for some tíme and has been unable to attend to his outside business. His witnesses testified that the injury to his leg was irreparable; while those of the defendant testified that it was not permanent. ' Held, that the question was one for the jury, and that a verdict for §5,000 was not so large as to indicate passion or prejudice and should not be interfered with.

Appeal from judgment in favor of plaintiff, entered upon •verdict, and from order denying motion for a new trial on the minutes.

Action to recover for injuries sustained by plaintiff in conse•quence of a collision between trains on defendant’s road. Plaintiff testified that he was thrown from the front of the car to the rear end, where he fell on his head and was rendered unconscious; that his wrist was sprained and his leg injured; that he cannot •sleep at night or lay on that side, nor walk without the use of a ■cane, and is in constant pain; that he is obliged to favor his leg, and is unable to attend to his outside work, and that he was confined to his house for seven or eight weeks. The physicians called by him testified that his injury is irreparable. Those called by defendant testified that the injury was not permanent.

E. B. Hinsdale, for app’lt; George A. Mod (Benj'. W. Downing, --of counsel), for resp’t.

This action is for the recovery of damages for personal injuries sustained by the plaintiff.

Upon the trial the counsel for the defendant admitted the negli.gence and the liability of the defendant, and stated the question to be one of mere damages.

Thereupon the case was submitted to the jury, and the plaintiff •received a verdict for $5,000.

The defendant has appealed from the judgment entered upon the verdict, and from the order denying a motion for a new trial ■on the minutes of the court

We are asked, as we often are, to set aside the verdict as excessive, but it is not so large as to make it plainly beyond compensation.

The witnesses for the plaintiff described his injuries as serious, :and those for the defendant made them less so, and the testimony all went to the j ury, the peculiar tribunal for the determination of •such a fact

It is in the settlement of just such questions, where there is no legal standard, that the jury system finds its greatest usefulness, and appellate courts interfere upon questions of mere damages with great reluctance.

p. 814

The verdict is not so large as to be evidence of itself of the presence of any influence beyond the testimony, and if the testimony introduced in behalf of the plaintiff commanded the belief of the jury, we cannot say the verdict is excessive.

The exceptions have all received examination, and we find no-error requiring a reversal of the judgment.

The judgment and order denying the motion for a new trial' should be affirmed, with costs.

The whole question submitted to the jury was as to the amount of damages, and we are of- opinion that the verdict is-not so large that we are warranted in interfering with it. The jury, no doubt, put faith in the evidence of plaintiff’s witness as-to the extent of the injuries. That was within their province.

There was no error of law committed, and the judgment must be affirmed.