18 N.Y.S. 649 | N.Y. Sup. Ct. | 1892
The defendant is a common carrier of passengers operating a street railroad in the city of Rochester. One of its routes is along West Main street and across the Erie canal, which is crossed by means of a lift bridge, which is elevated by means of hydraulic power to allow canal boats to pass. This bridge was constructed and maintained, by the state. On the 4th day of October, 1889, the plaintiff was a passenger on one of the defendant’s •cars upon West Main street, and while the car was crossing the aforesaid bridge she was injured by being struck upon the head and shoulders by a heavy piece of pig iron which fell from the upper part of the bridge, passing through the roof of the car, the piece of iron weighing some 80 pounds. It fell with other pieces from an iron trough, which was suspended over the railroad track. The pieces of iron had been placed in the trough for the purpose of being used as balance weights in elevating and lowering the •bridge. The trough was supported by stirrups attached to an iron cable, and the accident was caused by the giving way of an imperfect welding.in one of •these stirrups, which allowed one end of the trough to drop and the pig iron to slide out of the trough upon the car. This case was before this court at a prior term upon a motion for a new trial upon exceptions, directed to be heard •at the general term in the first instance, after a nonsuit of the plaintiff, and the facts of the ease are fully and clearly stated in the opinion of Justice Dwight, reported in 14 N. Y. Supp. 13. A new trial was granted, and upon the retrial, at the close of the evidence, the court intimated that it would submit no question of fact to the jury except the question of damages. The defendant’s counsel thereupon asked to have submitted to the jury the question •as to whether the omission upon the part of the defendant, under the circumstances of the case, to discover the defect in the bridge, was negligence on the part of the defendant, and whether it was negligence for the defendant to •continue to drive its cars across the bridge, with such knowledge as they did have of the manner of its construction. The court denied the defendant’s request, and decided that it would submit no questions of fact to the jury except the question of damages. The defendant’s counsel duly excepted to the
The defendant contends that the verdict of $3,500 was excessive, and that a new trial should be granted for that reason. Plaintiff, when she received her injuries, was about 14 years of age. She was so severely injured that she was carried home senseless. Her mother testifies that she did not recover her senses for 24 hours, and only partially then; that she complained of soreness in her shoulder, and in her back; that her face was red and badly cut;, that she remained in bed for two weeks; that her sight was affected; that she was nervous and sleepless; that before the accident she was healthy and slept well, and was not nervous. Plaintiff testified that she suffered much pain; that she had ever since the accident (a period of 20 months) suffered from dizziness and headache; that she was sleepless nights; that her ability to study had been affected; that she could not study at night; that at times-she was not able to see, and had not been able to go to school steadily since her injury. The physician who attended her testified that she suffered at first from nervousness; that her appetite was not good; and that she lacked, nutrition, and was pale and weak; and that the effects of the injury might continue for a considerable time. But he could not say that the injuries-