108 N.Y.S. 127 | N.Y. App. Div. | 1908
The judgment and order should be affirmed, with costs.
The action was brought to recover damages for personal injuries alleged to have resulted' from the defendant’s negligence. The plaintiff fell upon an accumulation of ice upon a sidewalk and received quite serious injuries. The recovery was for $4,500 damages.
It is claimed improper ■ evidence was admitted in the case and tended to cause so large a recovery. The only question we care to consider in an opinion relates to this subject. The plaintiff was engaged in the business of a merchant tailor. He had an office, took orders for clothes, cut them from goods he had on hand or ordered, and hired workmen by the.piece to make up the clothes.
We think no error was committed by the trial court in receiving this evidence and submitting it to the jury in the charge. We need only refer to two cases decided by the Court of Appeals. (Kronold v. City of New York, 186 N. Y. 40; Weir v. Union R. Co., 188 id. 416, and cases therein referred to.)
The opinions in these two cases considered the former decisions of the Court of Appeals. They are in no way conflicting, and the rule there laid down must be applied in this case. It was as follows: “ Where the facts disclose such a preponderance of the business element over the personal equation, or such an admixture of the two that the question of personal earnings could not be safely or properly segregated from returns upon capital invested, the income or profits from a business should not be considered in determining the amount of the damages to which the plaintiff is entitled.” (Weir v. Union R. Co, supra.)
In the Kronold case the plaintiff was engaged in selling Swiss embroideries. He took orders from shirt waist manufacturers, who dealt in such articles. The sales were made from designs or drawings procured from sample embroideries. ■ Ho considerable stock was carried by him, the capital invested being approximately $1,000. His office expenses, which included rent and wages of an office boy, did not exceed $600 a year. His net income was about $3,000 a year, which was derived chiefly from his personal efforts as a canvasser or salesman. He employed no salesmen or drummers, but did all the work himself.
It was held that the case should be classed as one involving the investment of an insignificant capital, as a mere, incident or vehicle to the performance of services, almost if not quite purely personal in their nature, and, therefore, proof of profits of the business could be given and considered as an element of damages.
In the Weir case the plaintiff, who was usually employed as a boatman, had for six or seven months prior to the accident rented a room immediately adjoining the street along the side of a liquor
It was held that ' evidence as to profits of the business was improperly received, and that the testimony should have been confined to the value of the' plaintiff’s individual services during the time that he was unable, by reason of his injuries, to perform the same; that under the rule laid down in the Kr'onold case, the question of personal earnings was too much involved in this ease with-the ordinary chances of a business venture to allow the profits on plaintiff’s business to be considered in, determining what damages the defendant should pay to the. plaintiff.
It would not be useful for us to consider, analyze or quote from the earlier cases, which were sufficiently referred to and discussed in these two' cases. It may be unfortunate that the lines have come to be so closely and. narrowly drawn- as to this element of profits, in the measure of damages,, but that is .no. concern of ours.' "We are to follow the Court of" Appeals, as best we can, in each individual case; It seenis to us our case is to be classed with the Kronold case, and, therefore, the trial court properly received the evidence complained of, and submitted it to the jury as it did,.
All concurred.
Judgment and order affirmed, with, costs.