263 A.D. 896 | N.Y. App. Div. | 1942
In an action to recover for the death of plaintiff’s intestate, a girl nearly thirteen years of age, who was struck by defendant railway company’s trolley car in a street underpass constructed and maintained by defendant City of New York, judgment was entered on the verdict of a jury in favor of plaintiff. Plaintiff appeals from so much of the judgment as contains the amount of the award, and from the order denying her motion to set aside the verdict on the ground of inadequacy. Defendants appeal from the judgment and the order denymg their motions to set the verdict aside. The judgment and order denymg motions to set aside the verdict are reversed on the facts and a new trial granted, with costs to plaintiff to abide the event, unless within twenty days from the entry of the order hereon defendants stipulate to increase the verdict to the sum of $5,000, in which event the judgment, as so increased, is unanimously affirmed, without costs, and the appeal from the order is dismissed, without costs. The amount of the verdict was inadequate. On a new trial, if one be had, the claimed error in receiving the testimony of physical changes made after the accident will not be repeated. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.