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Langley v. Sixth Avenue Railroad

48 N.Y. Super. Ct. 542 16 Jones & S. 542 Court N.Y. Super. Ct. Decision date 1882-06-19 English

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p. 542
AMELIA LANGLEY, Respondent, v. THE SIXTH AVENUE R. R. CO., Appellant.

Headnote

Damages—rule as to in case of personal injury—when deemed excessive-costs not imposed on reversal for excessive verdict.
Before Sedgwick, Ch. J., and Freedman, J.
Decided June 19, 1882.
Appeal by defendant from judgment entered on verdict for plaintiff and from order denying motion for new trial, made upon the minutes, one of the grounds of motion being that the damages recovered were excessive.
The action was for damages for injury alleged to have been caused by negligence of defendant’s servants. The plaintiff testified that in the accident proved, she fell and broke her knee-pan. She was taken to a hospital and there remained for three months and ten days ; in the hospital she underwent great pain ; she made a livelihood by coloring photographs and doing crayon work; in coloring photographs, she was employed five days in the week, her salary for that being $9 ; for three days’ crayon work she would receive $30
p. 543
or $40, but coloring photographs brought in work more regularly ; after the accident she did not apply for work in coloring photographs, because it was painful to sit any length of time. The surgeon who attended her at the hospital testified, that when she left the hospital, she had a good result; that there was, at the time he testified,'some stiffness of the knee and some swelling; that it was somewhat stiff, but not what is ordinarily called a stiff joint; that in such cases it was probably from six months to two years before there was a thoroughly good use of the joint; that there was no indication that it would be a permanent injury ; that it would take some time, but eventually she would have a good joint; that there was slight danger, very slight indeed, that there would be permanent disability ; that it was impossible to say how long she would be lame ; it depended upon herself ; if used, it would be a good joint; if not used, the stiffness would remain -f that at present she could not go up or down stairs without assistance ; that except so far as being required to walk or go a great distance to work, she could do the business of coloring photographs very well; that the injury would not interfere with her sitting at work. The accident happened October 20, 1881, and the trial' began February 8, 1882. 0
D. M. Porter, for appellant.
Benjamin F. Mudgett, for respondent.

There was no error on the trial, but the damages were excessive. The learned judge below seemed to incline to that opinion, but thought it best-that the general term should pass upon the question on appeal. The plaintiff’s case showed, that the consequences of the injury would not be permanent. The damages that may be recovered, are such as the proof shows to be reasonably certain of occurrence (Curtis v. Rochester and S. R. R. Co., 18 N. Y. 534 ). No estimation of past loss of occupation and pain, and the-

p. 544
future consequences according to the evidence, would justify the jury in fixing the amount of compensation at $6,000.

The practice is to deem the successful party, in such a case, not responsible for the action of the jury: The

new' trial, therefore, should be upon the terms that the defendant pay the trial fee and the. disbursements of that term.

New trial ordered, upon payment of costs above indicated.

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