Camparetti v. Union Railway Co.

88 N.Y.S. 425 | N.Y. App. Div. | 1904

Hirschberg, P. J.:

This appeal presents but one question for review, viz., the accuracy of the charge of the court to the effect that the jury might award to the plaintiff whatever sum they saw fit to allow him for loss of earnings during the time he was absent from his work because of the personal injuries complained of. .He was injured, while a passenger on one of defendant’s cars, on December 8, 1903, and he alleged in his complaint that by reason of such injury he was “ entirely incapacitated from attending to any business whatsoever for a period of several weeks.” A bill of particulars was afterwards filed by him, stating the nature of his injuries, and a further bill was also filed in reference to his loss of earnings, stating that “ plain,tiff is a stone and brick mason and earns four dollars a day. He was totally incapacitated for a period of about three weeks and a half after the accident, being confined to his room.”

No evidence was given on the trial of the amount of the plaintiff’s wages or earnings. There was proof that his doctor’s bill amounted to twenty dollars. The court charged the jury as follows : “ The maximum that you may find, if you do find for the plaintiff, will be $249, piade up in his claim and bill of particulars, of three weeks and a half at $4 a day as stone' mason, and twenty dollars which the doctor says he has charged for services for something like twelve or thirteen visits. The balance would represent the suffering as much as you say you think he was entitled to under the circumstances, provided you find for the plaintiff.” The defendant excepted to the charge as to the four dollars a day, whereupon the court charged that “ in reference to earning $4.00 a day, that he was detained from his work, I think he testified, as a stone mason, twenty-two days, and the amount of the salary not being stated, you may allow him what you thunk is right cmd fair, and an honest compensation to him for being kept from his work.” Exception was taken to this, and the court then said : “ I will not charge that, if the attorney for the defendant objects, inasmuch as' there seems to be a difference of opinion whether or not there was any testimony given as to how much the' plaintiff earned at his trade. I will leave that matter to the jury. You may allow him such sum as you- see fit from the testimony that you have heard to compensate him for the twenty-two days away from his work, and a balance of $20 for doctor’s fees, and as much as you see fit for his suffering.” This was also excepted to, the defendant insisting that only a nominal allowance could be made for loss of earnings.

The verdict of the jury was for $249, the maximum amount stated by the court, including an allowance of $4 per day for the loss of wages. There could be no recovery, however, for this item beyond a nominal sum, in the absence of proof of the amount of the loss. (Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26; Staal v. Grand Street & Newtown R. R. Co., 107 id. 625 ; Baker v. M. R. R. Co., 118 id. 537; Metz v. Metropolitan St. R. Co., 82 App. Div. 168.)

The judgment should be .reversed.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.