O'Neill v. Brooklyn Heights Railroad — 54 N.Y. St. Rep. 295

Majority

p. 295

James O’Neill, App’lt, v. The Brooklyn Heights Railroad Co., Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Negligence—Injury to horse—Damages.

In an action for injuries to a horse by collision wilh a street car, the plaintiff and his brother, who was riding the horse at the time of the accident, testified that he was permanently injured, his hip being knocked down; but it appeared that a few days later plaintiff applied to a veterinary surgeon to pronounce it sound, and the surgeon testified that the horse was lame, but lie discovered no dislocated hip. Held, that a verdict for nominal damages would not be disturbed.

(Dykman, J., dissents.)

Appeal from judgment in favor of defendant for costs, entered on verdict for six cents damages in favor of plaintiff, and from order denying motion for a new trial on the ground that the verdict is for insufficient damages.

Action to recover $400 damages for inj uries to plaintiff’s horse, sustained through being negligently run down by one of defendant’s cable cars.

James P. Niemann, for app’lt: Henry D. Hotchkiss and William S. Maddox, for resp’t.

The extent of the injury to the horse alleged to have been caused by the accident depended very much, if not entirely, on the testimony of the plaintiff and his brother Edward, who was riding the horse when he was injured. It is true that these witnesses if credited would call for a substantial verdict, but the case shows that the plaintiff applied to a veterinary physician to pronounce the horse sound within a few days after the accident The plaintiff says that he was requested to nave this examination made by the physician at the request of one McCoy, who knew of the injury the horse sustained and wanted to buy him. The doctor did not discover the extent of the injury as claimed by the plaintiff. He said the horse was lame but he discovered no dislocated hip. The jury had abundant reason for placing the injury at a nominal sum in case they discredited these two witnesses.

The judgment should be affirmed, with costs.

Pratt, J. concurs; Dykman, J., dissents. (See opinion in next case.)