72 N.Y.S. 283 | N.Y. App. Div. | 1901
The plaintiff was injured in a collision between two cars of the defendant, and at the trial the latter did not contest its liability to pay for whatever damages were actually occasioned to the plaintiff by the accident. It did then, and does now, deny that the plaintiff’s condition as it was at the time of the trial resulted from the accident, contending that it was partially at least the result of confinement. The jury rendered a verdict for $28,500. The defendant moved to set it aside as excessive and against the weight of
We are called upon to decide whether the order was a fair exercise of discretion, and having had occasion lately to consider the question in Lyons v. Connor (53 App. Div. 475), Mr. Justice Jenks writing, find it unnecessary to review authorities further than to cite our approval in that case of the remark of Mr. Justice Freedman in Bannon v. McGrane (45 N. Y. Super. Ct. 517): “It is at all times a grave question for an appellate court to reverse, on the ground of error, an order made by the trial judge setting aside the verdict-as against the weight of evidence.”
The plaintiff’s counsel, however, contends that this principle does not apply to the case at bar because, as stated in his brief, “ there is
There was consequently but one question for the jury, viz., the extent of the plaintiff’s injury resulting from the -collision, but mani
The plaintiff, who at the time of the accident was within a month "of her confinement, testified as follows: “ At the time of the collision I was sitting rather forward in the seat, towards the front edge of the seat, with my hands in my lap. When the shock of the .collision came it threw me back against the seat I was sitting on, and then again forward against the seat in front of me. When it threw me I struck the back of the seat. The part of my back which sustained the blow was between the shoulders and lower part of my back, below the shoulder blade. When I was thrown forward I struck directly across my abdomen. I struck my stomach right against the seat in front of me. I did not fall down on the floor. It settled me back after I struck against the seat in front; then I settled back onto the seat.”
The evidence of the plaintiff’s witnesses leaves no doubt that jjremature confinement occurred the day after the accident and resulted from it. Nor is there any question that the plaintiff at the time of the trial was suffering from paralysis of the right side and from incontinence of urine and faeces. The extent of this condition was questioned, and its consequence upon the accident was denied by the defendant. Several physicians and professional nurses were examined as to the plaintiff’s condition, and while the evidence, especially that of the experts, was not in any sense a demonstration that the plaintiff’s present condition is permanent or that it is the
On the day of the trial the plaintiff was examined by Dr. Pray, a female physician selected by the court. Her testimony does not fully corroborate that of the physicians called by the plaintiff, so far as the extent of the injuries is concerned, and the trial justice was unquestionably influenced by her report in his conclusion to set aside the verdict.
I am unable to discover any difference in the application of the rule, as to the regard which is to be given to the discretion of the trial justice in setting aside a verdict, between evidence upon an issue of negligence and an issue as to the amount of damages. In either case the appearance of witnesses and their manner of giving evidence are calculated to and do impress both court and jury) It would be a strange distinction to say that court and jury, might regard those matters in deciding the one question and not the other. I know of no such rule, and have been unable to find any case in .which the distinction is recognized. Certainly it is illogical and dangerous.
Under these circumstances and after a careful examination of the evidence I have no hesitation in saying that the order of the trial justice should be affirmed, with a modification requiring the defendant to pay the costs of the trial and all disbursements in the action to date, together with the costs of this appeal.
Sewell, J., concurred; Woodward, Hirschberg and Jenks, JJ., concurred in result.
. Order modified by inserting a provision requiring the defendant to pay the costs of the trial and all disbursements in the action to date, together with' the costs of this appeal, all to be paid within twenty days from the entry of this order, otherwise order reversed and judgment directed on the verdict, with costs, and costs of this appeal.
Opinion of Mattice, J., delivered at Special Term.
Mattice, J.:
I am forced to the conclusion that the verdict should be set aside as excessive. The amount awarded is extravagant in the extreme and not within the bounds of reason and justice.
The amount of this verdict and the income to be derived therefrom will be so-great that the wife can relieve the husband from the burden of supporting the family while she lives, and enable her at death to transmit a fortune to her children.
I would reduce the verdict to a reasonable amount and give the plaintiff an opportunity to consent to such reduction, but I am satisfied that the ends of justice require a new trial. To my mind it is highly improbable that the plaintiff was injured by reason of the collision. The impact of the cars was very slight. The cars were not injured and none of the occupants of the car, except the plaintiff, claim to have been injured in the slightest degree or scarcely inconvenienced.
The only disinterested witness upon the car testified that the impact was very slight and barely disturbed her position on the seat in front of the plaintiff.
The plaintiff claims to have been sitting well to the front, of the seat, and was-thrown backward against the back of the seat. There were no visible marks of-violence on her back, and the physician who attended her shortly afterward, during the birth of her child, discovered nothing about her condition or appearance to-indicate any injury to the spine
The rendition of such a large verdict in all the circumstances of this case induces me to believe that the jury were influenced largely by sympathy, and did not fairly weigh and consider all the evidence. In view of this large verdict the judgment of the jury upon the important question whether the accident was the natural and proximate cause of the injury is of little value.
Verdict set aside and new trial granted, upon the ground that the verdict is for excessive damages.