McMahon v. Walsh — 43 N.Y. Super. Ct. 36

Majority

p. 36

JAMES McMAHON, Plaintiff and Respondent, v. PETER H. WALSH, Defendant and Appellant.

Decided June 25, 1877.

Headnote

NEGLIGENCE. PERSONAL INJURY CAUSED THEREBY.

Damages, hot Excessive.

Where the personal negligence of the master has directly caused the injury, the master's liability to the servant is the same as it would be to a person not a servant.

In a case where no motion was made for the dismissal of the complaint, nor for the direction of a verdict, but the case was treated on the part of the defense throughout as one which could be disposed of by a jury only, and it not appearing from the evidence how the case could have been taken from the jury, the judgment should not be disturbed on the ground that the verdict was against the weight of evidence.

The verdict was for $1,000. Plaintiff’s injuries resulted in the loss of a third finger of the left hand; and it appeared that he was confined ten days in the hospital, and subsequently frequently returned there for treatment; that he was compelled to carry his hand in a sling for three months; that it took eight months to heal, and ever since that injury plaintiff was unable to do the same work that he had been accustomed to before that time, or to earn the same amount of wages. 1leld, that under these circumstances the verdict should not be set aside on the ground that the damages were excessive.

Before Speir and Freedman, JJ.

Appeal from judgment entered upon verdict of a jury and from order denying defendant’s motion on the minutes for a new trial.

The action was for personal injury occasioned by defendant’s negligence.

The jury rendered a verdict for plaintiff for $1,000.

p. 37

Redfield & Hill, for appellant.

Nelson Smith, for respondent.

—The action proceeded upon defendant’s personal negligence in the control of the operation of the machinery that caused the injury. In such a case the master’s liability to the servant is the same as it would be to one not a servant. Testimony was given on both sides, and the whole case submitted to the jury under a charge which was quite favorable to the defendant, and to which no exception lies. Ho motion was made for the dismissal of the complaint or the direction of a verdict, but the case was treated on the part of the defense thoughout as one which could be disposed of by the jury only. Hor does it appear how upon the evidence it could have been taken from the jury. The judgment therefore should not be disturbed on the ground that the verdict was against the weight of evidence.

Plaintiff’s injuries resulted in the loss of the third finger of the left hand, and it appeared that he was confined ten days in the hospital and subsequently frequently returned there for treatment; that he was compelled to carry his hand in a sling for three months ; that it took eight months to heal, and that ever since that time he was unable to do the same work he was accustomed to, or earn the same wages. Under these circumstances the verdict cannot be deemed excessive.

The judgment and order should be affirmed with costs.

Speir, J., concurred.