65 A.D. 490 | N.Y. App. Div. | 1901
This action was brought to recover damages for a personal injury sustained by the plaintiff in an accident while a passenger in one of the cars of the defendant, the details of which are not material here as no question is raised as to the negligence of the defendant or the absence of contributory negligence on the part of the plaintiff. The points argued by counsel relate wholly to the damages, which were assessed by the jury at $1,900, upon which a judgment- for $2,149.59 has been entered.
One Dr. Smith was called as an expert witness in behalf of the plaintiff, and after testifying to the facts in reference to an examination of the plaintiff which he had made for the purpose of testi fying, he was asked the following hypothetical question :
“ Assuming the case of a woman who was well and strong prior to January 11th, 1900, and upon that day receives a blow upon the
If we are right upon this point, it follows that the second suggestion of „ defendant, that the court erred in declining to charge the jury that there is no permanency of injury proved in this case, is not well founded. There was some evidence that the lypomas were caused or at least developed by the accident, so that it was necessary to permit a surgical operation, and Dr. Wight testified that there was a defective condition of the shoulder at the point where the incision was made for the removal of the fatty tumors, and that he could say with reasonable certainty that “ the condition I have described as to the shoulder will be permanent.” Whether the evidence produced upon this point was sufficient to constitute proof of the permanency of the injuries was for the jury to determine, and the court properly refused to charge as requested.
Under the oft-reiterated rule recognized in this court, that a verdict of a jury will not be disturbed merely because we might differ as to the amount if we were acting in the capacity of jurors, we are of opinion that the verdict for $1,900 was not so far excessive as to warrant the conclusion that it was the result of mistake, prejudice, passion, or any improper motives on the part of the jury, and the judgment should stand.
The judgment and order appealed from should be affirmed, with costs.
Present — Goodrich, P. J., Bartlett, Woodward, Hirschber& and Jenks, JJ.
Judgment and order unanimously affirmed, with costs.