13 N.Y.S. 458 | N.Y. Sup. Ct. | 1891
This action was brought to recover damages resulting from the negligence of the defendant. The defense was that the defendant was free from negligence, and that the injuries received by the plaintiff were caused by her own negligence. The account of the accident given by the plaintiff was as follows: “On the 26th day of October, 1886, Miss Shane resided in the same house with me. We started from there to my place of business and to her place of business. We went through Eighty-First street to the Eightieth-Street station. We went through the gate together, Miss Shane and I, and we dropped the ticket, and the train came along, and Miss Shane boarded the train. That was 25 minutes to 8 o’clock in the morning. I was due down town at 8 o’clock. Miss Shane boarded the train. Two or three gentlemen crowded in between Miss Shane and I. I was pushed off by the guard. As I stepped back, waiting to board the next train, the signal was given. The rope was pulled by the guard. I did not hear the bell ring. I only saw him pull the rope. As I stood back waiting to board the next train’, my arm was seized by the guard, which is my right arm, and I was dragged the extreme length of the platform. From the force of the push that I received I felt that I was falling, but I don’t know where I fell to. Then I went into the waiting-room when I came to myself, and the ticket agent was there, and he told me not to go to business. He told me not to go, but I did go. I could not tell exactly how long I remained. I didn’t remain there any time at all. I went direct to my physician, Dr. Vandergriffe. He called some time in the evening, about 5 o’clock. I was then in bed. Up to that time I had always been a healthy girl. Mothing at all the matter with me up to the time of the injury. When I was seized by the arm I was standing on the platform of the station, standing back waiting to board the next train. I think I have stated all that took place. I could not exactly tell you how far I was dragged by the guard. Question. One foot or ten feet? Answer. I could not tell you. I don’t remember; I was so frightened. I remember screaming that I didn’t want to board the train. Q. notwithstanding which he kept hold of you all the time? A. He seized me. I felt that I was falling, and that is all I remember. Up to that time I suppose the guard still had a hold of me; up to the time I fell. After that I was unconscious. I
The first point presented on behalf of the defendant was that the verdict is contrary to the evidence, and the motion for a new trial should have been granted. This is founded on the proposition that the plaintiff’s case presents an alleged act of wanton and total negligence on the part of the guard, and that the plaintiff’s story was confronted at the outset by an inherent improbability, while the defendant’s account is so natural as to almost suggest itself, even in the absence of any testimony. The counsel for the appellant had the opportunity upon the trial to elaborate this view of the case, and no doubt did so, in his address to the jury, and there were elements which might be used with success, but unfortunately for him the jury established by law as the tribunal to dispose of such conflicts found against his client. A perusal of the evidence does not suggest the propriety of interfering with the verdict upon the ground that it is contrary to the evidence, ft must be said the evidence sustains it,—sustains the propositions that the defendant was guilty of negligence, and that the plaintiff was guiltless of any contributory negligence on her part.
The next point presented on behalf of the appellant is that the learned justice of the court below refused to charge as follows: “That the plaintiff cannot recover merely upon the ground of unintentional negligence of a guard, but only on the ground of direct, willful negligence inflicted by the guard.” The answer to the alleged error of this refusal, is given by the respondent’s points, and is that the plaintiff was entitled to recover if the defendant, by its agents or servants, was guilty of negligence, whether that negligence was direct and willful, or whether the guard had been merely careless in conducting himself and caring for the passengers the safety of whose life and limb was intrusted to the defendant. It is said in 1 Shear. & B. Beg. ■§ 141, that the liability of defendants in cases of this character is not confined to the mere
The next error complained of is that the witness Lizzie Shane was allowed to testify that the guard stated after the accident, viz. >“That he was very sorry he had done it.” The objection thus urged arose in the following manner: “ Question. What did the guard say in reference to the train, tf anything?” The counsel for the defendant objected to the question as hearsay and irrelevant. The court overruled the objection. The counsel for the defendant duly excepted. That question, however, was not answered, but was followed by this question, namely, “Did you see the guard here in court yesterday ?” To which the answer was, “Ho, sir; I did not see him.” This was followed with the question, “Did you hear the guard say anything then?” to which answer was given in the form of a question, namely: “At the time of the accident? Question. Yes. Answer. He said he was very sorry he had done it. ” It will be perceived that there was no objection to the question asked, which was, “Did you hear the guard say anything at the time of the accident?” and which was entirely different from the question previously asked, which was, “ What did the guard say in reference to the train, if anything? ” This is supposed to be a complete answer to the exception mentioned, for three reasons: (1) As already stated, no objection was made to the question; (2) that it was wholly immaterial whether the guard was sorry he had done it or not,—the liability of the defendant resting upon the fact that the act complained of had been permitted, and that the evidence could not prejudice the defendant in any manner; and (3) that, if this be not so, the declarations of the party in a case like this, made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. Waldele v. Railroad Co., 95 N. Y. 274-278.
The next proposition urged on behalf of the appellant is that the learned judge presiding at the trial charged the jury that they could award damages to the plaintiff for future pain and suffering, in the absence of any evidence that she was likely to suffer it in the future. A complete answer to this proposition is that the learned counsel for the appellant is entirely mistaken in supposing that such a charge was made. What the learned judge said was this: “That if they found a verdict in favor of the plaintiff, they should consider the damages which should be allowed to her,” and then “she is entitled to compensation, if from the testimony you find that there is a reasonable certainty that she may suffer in the future from these injuries.” There was nothing, therefore, said about future pain. The propriety of the charge as to the future suffering arises from the fact that Dr. Gaedeke testified that, “in his estimation, the injuries received by the plaintiff were incurable,” which was not contradicted in any way, and it may be presumed could not be, from the fact that two physicians on behalf of the defendant made an examination of the plaintiff, neither,;of whom was called upon the trial; and the further fact, which the plaintiff had testified to, namely, that she was still under treatment, and had done nothing in the way of work since the accident occurred,
It is next urged that the verdict is excessive, and the result of the passion or prejudice of the jury, and one of the reasons assigned as establishing the justice of the criticism is that the whole of the plaintiff’s case is contained in eight printed pages of the testimony. It is true that that is not the only reason assigned, but it is illustrative of the disposition to treat the plaintiff’s case as one of little importance, notwithstanding that the uncontradicted medical evidence shows that her injuries are incurable, and that she has been deprived of the power, apparently, of making a livelihood, and from the time of the accident in 1887, at least down to the time of the trial, was still under treatment, and also that from that time to the time of the trial she had been supported by the kindness of one friend or more. Under such circumstances, $10,000, substantially paid for a ruined life, does not seem to be excessive. If well invested, it would not produce more than $500 a year, although that sum would not be left after the payment of the expenses to which her injuries subjected her, and the payment also of counsel fees for the prosecution of this action, whatever they may be. Whatever may be said on the part of the defendant as to the inherent improbability of the plaintiff’s story, it must not be forgotten that as to the accident the plaintiff was sustained by the testimony of her companion at the time it occurred, and that the jury, after a charge embracing all the necessary elements, decided that the plaintiff’s statement was a correct account of the occurrence; and it must be further said that, under all the circumstances disclosed by the record, the plaintiff’s injury and its results, properly considered, suggest, that such a verdi¿t as was rendered might well be given without passion and without prejudice. If, however, we
All concur.