Swan v. Long Island Railroad — 66 N.Y. St. Rep. 864

Majority

p. 864

Edward H. Swan, Jr., Resp’t, v. Long Island Railroad Company, App’lt.

(Supreme Court, General Term, First Department,

Filed April 11, 1895.)

Headnote

Appeal—Excessive verdict.

Where a verdict is set aside an excessive, a second verdict, on the same or no stronger evidence, for a greater amount will be alsd set aside.

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

W. C. Beecher, for app’lt ; Wilhelmus Mynderse, for resp’t

Upon the last trial, plaintiff recovered a verdict for $20,538.07. On the former trial the jury awarded the plaintiff $12,500, and this court decided that that was excessive. Swan v. Railroad Co., 61 St. Rep. 28 . It is not claimed by the respondent that the present case, in any of its essential features, is stronger in favor of the plaintiff, upon the question of damages, than that presented by the former record on appeal; and while an examination of the record confirms the claim,, by reason of the time that had elapsed, that the injuries were serious, we regard the case as not quite so strong for plaintiff as upon the first trial. Upon the second trial no evidence was given of doctors’ bills, nor was there anything to show how plaintiff’s injuries had affected his ability to get about and enjoy himself, upon both of which points evidence was presented at the former-trial. In this state of the record, consistency requires that the judgment, which, upon similar evidence, is almost double the one that was set aside as excessive, should not be affirmed. Unless, therefore, the plaintiff will stipulate to reduce the verdict to $10,000, it should be reversed, and a new trial ordered, with costs to abide the event.

All concur.