36 Misc. 190 | N.Y. App. Term. | 1901
On November 24, 1900, the defendant’s horse, yoked to a wagon and unattended by any person, ran away in a Avesterly direction on One Hundred and Thirty-ninth street and collided with the plaintiff’s wagon at St. Ann’s avenue, inflicting the injuries for which he obtained judgment. The accident unexplained raised the presumption of negligence (Norris v. Kohler, 41 N. Y. 42, 46; Unger v. Forty-Second Street R. R. Co., 51 id. 497; McCahill v. Kipp, 2 E. D. Smith, 413; Doherty v. Sweetser, 82 Hun, 556; Wasmuth v. Butler, 86 id. 1; Pearl v. Macaulay, 6 App. Div. 70); and the facts disclosed do not show that as matter of law the plaintiff was guilty of contributory negligence.
As to the amount of damages. The plaintiff was awarded the full amount demanded in his complaint. This sum, as appears by his bill of particulars, was made up of seventy-eight dollars and sixty cents for repairs to his wagon; twenty-six dollars and twenty-five cents for carriage hire while the wagon was undergoing repairs; thirty dollars damages to coat and trousers; five dollars and fifteen cents for medical treatment; and three hundred and sixty dollars for personal injuries. The estimated damage to the wagon and the value of the repairs as testified to by Mr. Klein, the witness who did the repairing, coupled wfith the payment to him of the amount, of the estimate, seventy-eight dollars and sixty cents, fully prove the item in question, which was therefore properly allowed. Volkmar v. Third Ave. R. R. Co., 28 Misc. Rep. 141. The item for carriage hire, twenty-six dollars and twenty-five cents, was also properly allowed, for it was proved that there was no unreasonable delay in repairing the wagon. Albert v. Bleecker Street R. R. Co., 2 Daly, 394. There was no evidence showing the payment of five dollars and fifteen cents for medical expenses. Neither was it proved that the damage to the plaintiff’s clothing was thirty dollars. As to the injuries to the plaintiff’s person, he himself testified: “ I was bruised about the back, the hip and the leg and the back of me, from the back of my head rather — the small of my back, my hip, my thigh and my leg.” And his physician testified that plaintiff “ had a contusion of' the left thigh just above the knee, a contusion and abrasion of the left arm, just above the elbow, a contusion of the left hip, a contusion and abrasion of the scalp just back of the left ear, a contusion of the left buttock — the fleshy part of the thigh — that is all.” There was no other evidence as to the extent of personal injuries, and none as to pain, suffering, confinement, or loss of business. Although the award of $360 was ample,it cannot be said to be excessive. In tort actions for personal injuries the amount of damages is left to the discretion of the jury, and the court will not ordinarily interfere unless the amount is so unreasonable and excessive 'as to be indicative of passion, prejudice, partiality, or corruption. 14 Ency. Pl. & Pr. 756; Walsh v. Fitchburg R. R. Co., 78 Hun, 1; Minick v. City of Troy, 19 id. 253. We are, therefore, not disposed to reduce the sum allowed for the personal injuries.
Freedman, P. J., and Gildersleeve, J., concur.
Judgment reversed, and new trial ordered, with costs to appellant to abide event, unless respondent stipulates to reduce recovery to $464.85, with costs awarded below, in event of which stipulation judgment affirmed, without costs.