Joly v. New York & East River Ferry Co.

62 N.Y.S. 576 | N.Y. App. Div. | 1900

PER CURIAM.

The action was brought to recover damages for personal injuries caused by plaintiff’s fall while she was about to take passage on one of the defendant’s ferryboats for the purpose of returning from Astoria to her home in Ñéw York City on Septembér 26, 1897. The questions of defendant’s negligence and plaintiff’s freedom from contributory negligence were submitted to the jury upon sufficient evidence, after a full and impartial charge by 'the court, to which no exception was taken. The trial resulted„in-a verdict for the plaintiff for the sum of $4,500, and the one question which we deem it necessary to consider, is the claim made, among others, that the damages awarded were excessive. The plaintiff herself testified that when she fell she fainted, and thereafter went home, and was treated by Dr. Renner for a couple of days; suffered great pain in her left shoulder, which was much swollen, and could not lift her arm; that she then went to Dr. Cook, in the Presbyterian Hospital,—at first three times a week, and then twice a week, for eight or ten weeks; and for a year after the accident suffered pain, from which she is not yet entirely free; that she has not recovered full use of her arm, cannot lie on her left side, and in bad weather cannot sleep nights. Dr. Renner testified that he treated her for three days, and found her shoulder swollen and discolored, and a small fracture of the upper external part of the humerus, and, to avoid expense, advised the plaintiff to go to a hospital. Dr. Cook testified that he treated the plaintiff about a month; that he found a considerable swelling of the left shoulder, and that she was then able to lift her arm but very slightly; that there was a rupture of the ligaments of the shoulder joint, but the bone was not displaced, and there was no dislocation or fracture; that in raising the humerus the scapula moved with it, which means ankylosis of .the shoulder joint; that the plaintiff is not able to use the shoulder joint, and can lift her arm only to a right angle, and cannot use her arm for work; that the joint is somewhat stiff, and she will not entirely regain its use; that his examination before the jury confirmed his previous opinion. Dr. Townsend testified, for the defendant, that when he examined the plaintiff there was no swelling of the joint, or deformity, or sign of dislocation or fracture; that, on raising the plaintiff’s arm, she shrieked, but afterwards he observed that she herself raised her arm without apparent suffering; that he found no evidence of ankylosis or stiffening of the joint, except a slightly restricted motion; that she has a good joint.

Considering the nature and extent of the injuries, it is evident that the verdict was for more than double the amount to which the plaintiff was' entitled. If the plaintiff will consent to reduce the verdict to $2,000, then for that amount and costs the judgment should be affirmed; but, upon her refusal to do so, then the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.