Kitchell v. Brooklyn Heights Railroad — 63 N.Y. St. Rep. 267

Majority

p. 267

Edward A. Kitchell, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

(Brooklyn City Court, General Term,

Filed, November 26, 1894.)

Headnote

1. Appeal—Weight of, evidence.

A verdict, upon conflicting .evidence, will not be set aside as against the weight of evidence, though the number of witnesses on the part of the defendant preponderates, where several of them are its employes.

2. Damages—Excessive.

A verdict for $2,000 for the loss of services of plaintiff’s seven year old daughter was held, in this case, not to be excessive.

Appeal from a judgment entered on a verdict in favor of plaintiff".

Morris & Whitehouse, for app’lt; Dailey, Bell & Crane, for resp’t.

This action was brought to recover damages sustained by plaintiff for the loss of services of his daughter in consequence of injuries sustained by her through the alleged negligence of the defendant, and for medical expenses in the treatment of said injuries. Plaintiff obtained a verdict for $2,000, and this appeal is from the judgment entered thereon, and from the order denying a motion for a new trial. The learned counsel for the appellant contends that the judgment should be reversed, on the grounds that the verdict was against the weight of evidence, •that the plaintiff failed to prove freedom from contributory negligence or negligence of the defendant, and that the verdict was excessive

It appears from the case made by the plaintiff: That he resided on the south side of Myrtle avenue, at the corner of Schenck street. That his daughter was a bright, intelligent child, seven years old, accustomed to go on errands to the stores. That, on the afternoon of September 17, 1893, plaintiff, in company with his parents, his wife, and the child in question, were returning home from Greenpoint, about 4 or 5 o’clock, and were passengers on one of defendant’s trolley cars running through Myrtle avenue. That plaintiff requested the conductor of the car to stop at Schenck street, but that the car went about 50 feet below Schenck street before stopping. That plaintiff got out of the car first, with his little girl, leaving his wife and parents to follow, alighting from the right-hand side of the car, which was on the northerly track on Myrtle avenue. That in company with his child he went around the rear of the car, and proceeded to cross to his residence, on the south side of Myrtle avenue, moving in a diagonal direction. That went he had gotten within from 8 to 12 inches of the southerly or up track, he looked down Myrtle avenue as far as Steuben street, a distance of about 150 feet, and saw no car approaching. Just then he heard a scream from his wife, who had made a misstep in coming out of the car, and he left the child, and hurried back to the car, to see what was the matter. When he got back to the car, he found his wife stepping down

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from the car. At that moment, he heard a shout from the motorman of an up car, “Get out of the way!” He turned and saw his child in the middle of the up track, coming towards him, she having evidently proceeded on her way across the track after her father left her to go back to, his wife. The next instant the up car. came along very rapidly, going at the rate of 12 to 15 miles an hour, struck the child, threw her down, and dragged her along, the car going some 40 or 50 feet before it stopped. Plaintiff rushed bach to the car, and sized his child by the skirts, and ran along some 20 feet with the car, endeavoring to beep her from being dragged under the wheels. When the car stopped, it was pushed back a short distance, and the child was taken out from under the car, somewhat bruised, and her left thumb so badly mangled that it had to be amputated. The evidence of the plaintiff was corroborated by hisfather, who witnessed the accident while on the rear platform of the car, awaiting an opportunity to alight There was also evidence that late in the afternoon the motorman called at the plaintiff’s house, and there said, “As soon as I saw her on the track, I called to her to get off, and she turned back.” The evidence on behalf of the defendant flatly contradicted the case made by the plaintiff. The testimony adduced on its behalf was to the effect that the car was proceeding on the up track very slowly, the motorman ringing his gong while approaching and passing the down car, then at a halt; that just as the front of the up car was abreast of the rear dashboard of the down car, the child darted from behind the down car, and ran into the up car, striking it at the front corner of the front step, the effect of which was to throw her down, and cause the injuries complained of; that at that time the motorman had no power on, it being a down grade; that he applied his brakes as quickly as possible, and succeeded in stopping his car in a position that left his front wheels in a line with the rear dashboard of the down car when it came to a standstill. It further appeared that the front wheels of the car were nine feet eight inches back of the front dashboard.

It will be seen from the foregoing that the testimony of the witnesses on either side was in direct conflict as to how this child came to be hurt, and it was peculiarly within the province of a jury to determined where the truth lay. So also were the questions of contributory negligence of the plaintiff and his child and of the negligence of the defendant. These questions were submitted to the jury in a charge to which no exception was taken, and the learned trial judge also charged the jury that if they believed the contention of the defendant the plaintiff was not entitled to recover. We have very carefully scrutinized the evidence in this case, and as a result of such scrutiny we cannot say that this verdict should be set aside as against the weight of evidence. While it is true that the number of witnesses on the part of the defendant preponderated, yet it is to be observed that several of them were employes of the defendant, with a natural tendency to favor their employer, and to acquit themselves of blame. Nor is the testimony free from contradictions and discrepancies in many

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important particulars. The jurors saw all the witnesses on the •witness stand, heard them testify, and are more capable of determining their credibility than we are from a perusal of the printed testimony. The question of contributory negligence, as well as of negligence of the defendant, were also questions for the jury to determine, and they were fully instructed as to the principles of law applicable to a case of this character, and we can see no reason for disturbing the verdict on that ground. Brown v. Twenty-third St. R. R. Co., 21 St. Rep. 475 ; 4 N. Y. Supp. 192 ; affirmed, 121 N. Y. 667 ; 30 St. Rep. 1014 .

Nor are we prepared to say that this verdict should be interfered with on t-he ground of excessive damages. It appeared that this child had her left thumb amputated, and that the plaintiff incurred a bill of $100 for medical treatment. When we consider the importance of the thumb as a member of the hand, and how necessary its presence is to make the hand available for use in nearly all ordinary vocations, we cannot say that a verdict for $2,000 was so excessive as to indicate that the jury " acted under some improper bias, influence, or prejudice” in awarding that amount.

We are therefore of the opinion that the judgmént and order denying motion for a new trial should be affirmed, with costs.

Cases cited

Brown v. Twenty-Third Street Railway Co. 121 N. Y. 667 N.Y. 1890-05-06 p. 269