158 N.Y.S. 865 | N.Y. App. Div. | 1916
The plaintiff, a contractor and builder, went to the store of the defendant, on Lake street, in Elmira, to purchase certain goods, and was sent by an employee to the warehouse of the company on State street to obtain the goods, being given an order for this purpose. The plaintiff entered the warehouse building through a door in the State street side or end of the
But the plaintiff is not satisfied with the judgment; he says that the award of damages of $700 is entirely inadequate, and that it indicates a compromise verdict, and one which should not be permitted to prevail. The plaintiff produced evidence, which is not disputed, showing expenditures growing out of the injuries aggregating over $500, and there is no dispute that he has been unable to work for more than one year, and that he has suffered a good, deal of pain and annoyance, and that he is not yet free from' the injuries. His own witnesses say that the injuries are permanent in character, and the defendant’s witnesses go no farther than to give the opinion that the plaintiff will be able to dispense with the use of a crutch or cane, but without indicating when this result may be reached, or that he will ever be perfectly well. His most serious injury appears to have been to the right hip joint, and all the witnesses agree that he was suffering more or less inconvenience at the time of the -trial.
Obviously, if the plaintiff was entitled to any recovery at all he is not compensated for his injuries by an allowance of $700, which practically only covers his expenditures, and it is difficult to escape the conclusion that the jury must have been in doubt as to his right to recover at all, and reached the compromise verdict of $700 rather than disagree. The purpose of judicial trials is to approximate, at least, justice. The plaintiff is not entitled to recover if he contributed by his own
The judgment and order appealed from should be reversed, and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event. The court "disapproves of the findings of fact that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence.