Ferguson v. Ehret — 70 N.Y. St. Rep. 725

Majority

p. 725

George W. Ferguson, by Guardian, etc., Resp’t, v. George Ehret, App’lt.

(New York City Court, General Term,

Filed November 26, 1895.)

Headnote

1. Negligence—Collision—Proof of ownership.

Evidence that a wagon, by which plaintiff was injured, bore defendant’s name and business address, warrants the finding that defendant was the owner.

2. Proof.

The evidence, in this case, was held sufficient to sustain a finding that the injury to plainliff by the collision with defendant’s wagon was caused by defendant’s negligence.

3. Damages—Excessive.

A verdict of §1,500, for personal injuries, was held, in this case, not to be excessive.

Appeal from a judgment in favor of plaintiff.

Ashbel P. Fitch, for app’lt; Mason & Pagelovi, for resp’t.

If defendant’s wagon caused the injuries plaintiff complains of, it is immaterial what its number was. There was certainly evidence showing that a wagon bearing upon it the defendant’s name and business address did collide with Hoeffler’s wagon, which in turn, and because of such collision, was forced over against plaintiff’s wagon, breaking it, throwing him out and against the sidewalk, from which he suffered the injures related by him. Such testimony certainly authorized the jury in finding that said wagon was one owned by defendant. It also appears that plaintiff's wagon was being driven along Eighth avenue, a public highway, in a lawful manner, and that such was also the case with Hoeffler’s and defendant’s wagons ; that when they were all three abreast, and going up town, the defendant’s horses and wagon were by their driver suddenly swung out of their course, and he endeavored to cross in front of the wagons of plaintiff and Hoeffler; that .in doing so it (defendant’s wagon) struck violently against Hoeffler’s wagon, and because of such collision, as before stated, Hoeffler’s wagon was forced over against, and struck, plaintiff’s wagon, breaking it and casting plaintiff out and upon the walk. Such testimony undoubtedly justified the jury in deciding that the defendant’s driver.was careless in the management of his horses and wagon.

The question, was plaintiff guilty of contributory negligence? was certainly for the jury to decide, and was properly submitted to them bv the trial justice.

The defendant’s claim that the verdict is excessive, and for that reason should be set aside, is not justified by the evidence, I think, because it appears that for several months plaintiff was under medical treatment; that he suffered from headaches and stomach

p. 726

ánd liver troubles, and several other things, as related by the attending physicians; and that “probably he may feel the trouble in his liver and spine all his life,” to use the words of Dr. Ahlstrom. If the plaintiff was so severely injured — and evidently the jury believed the testimony to be true—I think that it would be improper for us to declare the verdict herein ($1,500) excessive. That question was one for the jury, and their finding should be sustained, unless it appears to be the result of passion, prejudice, a disregard of the evidence, or some such consideration —something which, in our judgment, did not occur herein.

The judgment must be affirmed, with costs.