Lyon v. Second Avenue Railroad — 69 N.Y. St. Rep. 816

Majority

p. 816

Emanuel Lyon, as Administrator, etc., Resp’ts, v. Second Avenue Railroad Company, App’lt.

(Supreme Court, General Term, First Department,

Filed October 18, 1895.)

Headnote

1. Damages—Excessive.

A verdict of $5,000 for negligence in causing the death of a woman, sixty-three years of age, will not be disturbed as excessive, where she, at the time of the accident, was living with her husband and daughter and doing all the household work.

2. Negligence—Question eor jury.

The question whether the disease, of which the intestate died, was caused by an accident resulting from the defendant’s negligence was held, • under the evidence of this case, to be one for the jury.

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

Payson Merrill, for app’lt; Sumner B. Stiles, for resp’t.

This action was begun July 28, 1894, to recover damages resulting from the decedent’s death,—caused, it is alleged, by the negligence of the defendant and of its employe. The defendant, on this appeal, does not challenge the finding of the jury that the decedent was injured September 8, 1892, by the negligence of the defendant and of its servant, and that she did not, by any act or omission, contribute to the accident. There was no conflict in the evidence in.respect to the accident, its cause, or the decedent’s conduct on the occasion. None of the exceptions taken to the charge or to the rulings upon the admission or exclusion of evidence are questioned, and we are asked to reverse the judgment solely on the grounds: (1) that the accident was not the cause of death; (2) that the damages awarded ($5,000) were excessive.

September 8, 1892, the decedent, while walking on the sidewalk of Bast Twenty-Eighth street, was knocked down and injured by a team which escaped from the defendant’s driver. Her right leg was considerably injured,—to such an extent that she never fully recovered from its effects,—and she sustained so severe a shock that she remained in a semi-conscious condition for two or three days. At this time the decedent was sixty-three years of age, and had, before the accident, been possessed of good health, but from the time of the accident to May 2, 1893, when she died, she was in feeble health. The immediate cause of her death was Bright’s disease,—induced, it is asserted, by the shock. The physician who attended the decedent during her last illness, and had been the family physician for a year or more preceding the accident, testifies that the disease of which she died was traceable to, and caused

p. 817

by, the injury. Another physician,—an instructor for seven years at the College of Physicians and Surgeons at Columbia College,— testified that in his opinion the accident caused the disease of which she died. A physician who had been employed by the defendant, in its accident cases, for two years, testified that he saw the decedent four days after her injury ; that he found three confused and lacerated wounds on her right leg, below the knee. He testified that he saw no evidence that the patient was suffering from shock, but noticed that her legs were swollen, but that the swelling could not, in his opinion, have been produced by the injury. He said that in his opinion the decedent then bad chronic Bright’s disease, and died from its effects, and that the disease was not caused by the injury. A physician who has been a professor •of clinical medicine and therapeutics for several years was called by the defendant, and testified, as an expert, that in his opinion, founded upon the evidence, the.injury was not the cause of the disease of which the woman died. This witness had never seen patient. Bach side swore the same number of medical witnesses, but those sworn in behalf of the plaintiff had the best means of knowing the facts and forming an opinion, and their opinions were supported by the evidence of the plaintiff in respect to the jn-evipus good health of his wife. We think, under the evidence, that the question whether the injury was the cause of death was a fair question for the jury, and that its verdict cannot be disturbed.

Nor do we think the verdict should be set aside because the damages were excessive. The decedent was sixty-three years of age, in good health, and performed all of the labors in plaintiff’s household. She left her husband and one unmarried daughter, of full age, her only next of kin; the three before her death, living together as one family. The daughter, before her mother’s illness, had employment elsewhere. The estimate of the damages sustained in such cases is necessarily based upon probabilities, and can never be ascertained with accuracy, or to the satisfaction of both parties. Under the decisions of this court, we cannot reverse the judgment and set aside the verdict upon the ground that the damages awarded were excessive. The judgment_and order should be affirmed, with costs. All concur.