113 N.Y.S. 647 | N.Y. App. Term. | 1908
The action is to recover damages for an injury to the plaintiff’s automobile resulting from a collision with one. of the defendant’s express wagons, and claimed to have been caused by the negligence of the defendant’s driver. The pleadings were oral and the answer was a general denial.
The automobile, after coming east through Waverly Place, in the borough of Manhattan, at the speed of four to five miles an hour, turned south on Washington Square East, and continued on the right-hand or westerly, side of that street for about 40 feet, to the place
In my judgment there was sufficient evidence to sustain the jury in finding that the injury was caused by the negligence of the defendant’s servant, and that the plaintiff did not contribute to the result by any negligence on the part of his servant who was in charge of the automobile. While some parts of the charge relating to the rule of the road, if taken by themselves and read literally, may not be entirely unexceptionable, I am satisfied that the jury could not have failed to
■ The plaintiff’s counsel sought to introduce in evidence a conversation held immediately after the accident between the plaintiff’s witness Lawrence, one of the occupants of the automobile, and the driver of the defendant’s wagon, which was excluded on the defendant’s objection. When another attempt was made to introduce the same evidence, the trial justice said:
“Any more suggestions or innuendoes of that character will cause a mistrial. I will not allow that evidence, and have already excluded it.”
Whereupon the plaintiff excepted. No further attempt was thereafter made by the latter’s counsel to renew the question, nor was the matter again referred to at any other stage of the case, and, after reading the record, I am convinced that the minds of the jury were not, as claimed by the defendant’s counsel, prejudiced against their client by reason of the putting of the questions upon the topic above referred to, and, as already shown, excluded upon their objection.
The defendant contends, furthermore, that the “plaintiff was entitled to a verdict of $233.81, if anything.” According to .the testimony adduced on behalf of the plaintiff, the reasonable value of the repairs to the automobile was $218.81, and the fair and reasonable price for the hire of other automobiles was $15, making the total amount of the damages claimed by the plaintiff the sum of $233.81. The defendant’s counsel argues that such verdict was a compromise, and cannot be justified by any available method of computation. In order to come within the rule condemning verdicts brought about by a compromise, it must appear that no case for a quantum meruit was made out, and there must be an issue as to the specific sum which was to be paid as part of the contract. In other words, where the damages are liquidated and the plaintiff gives testimony to the effect that it' was agreed between the parties to the contract under which he seeks recovery that he should receive upon its performance a specified sum, and the defendant, on the other hand, testifies that a smaller sum was to be paid, or where it appears from his evidence that the plaintiff is not entitled to anything, and the jury renders a verdict in favor of the latter in a sum not claimed by either party as being the stipulated price or sum, if any, such verdict is clearly the result of a compromise and will be set aside. Oliver v. Moore, 58 Hun, 609, 12 N. Y. Supp. 343; Bigelow v. Garwitz, 61 Hun, 624, 15 N. Y. Supp. 940; Powers v. Gouraud, 19 Misc. Rep. 268, 44 N. Y. Supp. 249; Myers v. Myers, 86 App.
It follows that the judgment should be affirmed, with costs. All concur.