43 N.Y.S. 782 | N.Y. App. Div. | 1897
Lead Opinion
This action was brought to recover for injuries claimed to have been sustained by the plaintiff on the 26th of August, 1893, while alighting from a car of the defendant. The accident happened at the intersection of Sixty-eighth street and the Boulevard. That the plaintiff was thrown down upon alighting from one of the defendant’s cars and received serious injuries seems to have been satisfactorily proven. The questions litigated were, whether the defendant was guilty of negligence, and whether the plaintiff had shown, herself free from contributory negligence.
During the progress of the trial various exceptions were taken,, some to the rulings of the court upon the question of the qualifications of jurors, some to the rulings upon questions of evidence,, and some to the charge as made by the court. While many of the-, .other questions presented are extremely serious in their nature, in view of the conclusion at which we have arrived in respect to two-of the exceptions to the charge, it does not seem necessary that we-should consider those questions.
The learned court, after addressing the jury upon the facts of the-case, charged as follows : “No matter how great the negligence of the company may have been, you cannot add one dollar to the verdict except by way of compensation. Compensation takes in pain and suffering; takes in the loss of earning power; it takes in apprehension ; it takes in the injury to the person, even if it extends to the-end of life, if the evidence satisfies you that the disability will so far extend. There is no rule except the intelligence, the-experience and the honor and honesty of the jury to determine this.”
The counsel for the defendant excepted to the charge of the court-allowing the jury to take into consideration in measuring damages, the apprehension of the plaintiff. The court had already charged that the jury were to take into consideration pain and suffering and. loss of earning power, and then, as an additional element of damage,, stated, “ it takes in apprehension.” There was no evidence whatever in the case showing that the plaintiff had suffered in the slightest, degree from apprehension; and it seems to be reasonably well settled that where there is an element submitted to the jury for consideration in the way of damages, evidence of the existence of that
In the case of Leeds v. The Metropolitan Gas Light Co. (90 N. Y. 21) the evidence showed that the plaintiff was engaged in business at the time of the injury and had not been able to attend to it since; and it was • held error to charge the jury that the plaintiff was entitled to recover compensation for the time lost in the absence of evidence showing what the business was or the value of his time, or any facts as to his occupation. The court stated that the jury were left to guess at or speculate as to the value of lost time without any basis in that respect for the judgment to rest upon.
In the case at bar, without any proof whatever that any apprehension existed, the jury are instructed that they may award compensation for apprehension. It seems to us that this is going much further than the court went in the case of Leeds v. Metropolitan Gas Light Co. (supra), because in that case it appeared that prior to the happening of the accident the plaintiff had been engaged in business, but had not been able to pursue his occupation since that time; and it was held that, notwithstanding this, there being no proof as to the nature of his business or the value of the time lost, it was error to allow it to be considered by the jury as an element of damage.
Upon the termination of the judge’s charge the counsel for the plaintiff made the following request: í-1 ask your honor to charge the jury that,, taking all the elements' into consideration, the jury may award her compensation, fair* reasonable and just, to any amount not exceeding thirty thousand dollars.” This the court charged and the defendant excepted. This was an intimation to the jury that, under' the evidence which had been produced upon the trial, they would have had the right to render a verdict for $30,000, which was clearly not the fact; and this intimation upon the part of the court in regard to the nature of the evidence may have affected their consideration, and may have been in some degree the cause of the large verdict which was rendered. Such a charge was eminently calculated to mislead the jury, and to cause them to regard the evidence of the injuries sustained' as of greater gravity than its actual purport required. The learned court did not charge that the plaintiff claimed $30,000, and that the.jury were entitled
It appears to us that, in consequence of the errors to which attention has been called, the jury were not correctly instructed in regard to the rule of damage, and seem to have been misled.
The judgment should be reversed and a new trial ordered, with .costs to the appellant to abide the event.
Williams and O’Brien, JJ., concurred.
Concurrence Opinion
I concur with the presiding justice in the conclusion that there should be a new trial, as I do not think that the real question in this case was fairly presented to the jury. The plaintiff on her direct examination did not testify as to whether or not the car stopped before she attempted to alight; but on cross-examination she testified, “ I did not get up from my seat at all before the' car came to a full stop; ” and again, “ the rear end of the car, it just passed the street; just passed the upper part of the street, and then it came to a full stop; then I got my left foot down on the step; my right foot was on the step — my right foot was also on the step ; both feet were on the step; my hand was still holding the rail when the car started; I put one foot down, and before I could put the other down the car started.” The complaint expressly alleges that the plaintiff, “ while attempting to ¿light therefrom, after the said car had been stopped, by the improper, negligent and careless starting of said car, by defendant’s servants, ere giving the plaintiff the opportunity to leave the same, whereby she was thrown off and from said car suddenly and violently into the street to the ground,” was injured, etc. Thus, the plaintiff’s cause of action as alleged in the complaint, and’ as sworn to by herself upon the trial, was based upon the negligent starting of the car before the plaintiff had an opportunity to alight. One of the witnesses called by the plaintiff contradicted the
■ The defendant called a passenger who was on the ear, the driver and a policeman, who swore that the car did not stop until after the plaintiff attempted to -alight. The plaintiff’s cause of action thus being based upon the allegation that the car did stop, but before she had an opportunity to alight, it was started, throwing her to the street, the court charged the jury as follows: “ Now, gentlemen, her story is this, and she is'to be judged by that: I got upon this car as a passenger and I paid my fare. At a certain point in the city of New York, I ¡asked the conductor to stop. lie rang the bell and the car got there to a. full stop, or s© very slow as to- be hardly in motion, and then she got uj> and put.her foot down towards the road, or towards a portion of the car which would be a step towards-the road, not touching the road, and in that condition the car started up and threw her off the car. * * * She says the car slowed so as to be barely, if at all, in motion, and that, while she was endeavoring to put her foot to the street and -had not left the car, it started suddenly. If the company.did that, it did wrong, and if you credit this story that she didn’t have time to leave the car, and that, while standing upon the step, the car started suddenly and threw her into-
■ The verdict was very large, There seems to have: been a clear ’ preponderance of evidence for the defendant; and, considering the way in which the case was submitted to the jury, it seems to me •evident that the jury did not have a clear perception.of the question that they were to determine. Fob that reason there should be •a new trial.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide • •event. '