154 N.Y.S. 29 | N.Y. App. Div. | 1915
I vote to reverse. I adopt as an expression of my reasons the following opinion that was prepared by the late Mr. Justice Burr, who originally sat in the case. This opinion received my concurrence during his lifetime. Moreover, I think that the judgment should be reversed for excessive damages.
‘1 Plaintiff recovered a verdict of $35,000 damages for breach of a contract of carriage with defendant. From the judgment entered on this verdict and from an order denying a motion for a new trial this appeal comes. Plaintiff’s narrative of the events upon which she bases her claim may be thus summarized. In April, 1911, at the town of Ballinlough, in the county of Roscommon, Ireland, she, being then 19 years of age, entered into a contract with defendant for transportation, as a third class passenger, from Queenstown to New York. She sailed from the former port on Sunday, April sixteenth, in the steamship Campania. With 23 other women she occupied, for sleeping purposes, a room in that part of the ship known as the third cabin. On the Friday preceding her departure, plaintiff’s period of menstruation began, and continued until the succeeding Tuesday; and the evidence would indicate that it was so profuse in character that not only her person but her underclothing, and the bedding upon which she slept was stained thereby. At some time during Tuesday night, one of the women in the room where plaintiff was sleeping was delivered of a child. So far as the evidence discloses, this was without the knowledge of any one occupying the room with her, and she was without medical or other attendance. The dead body of a full term child was found the next morning in a bucket in the scupper. On Wednesday morning, when plaintiff sought to go on deck, in the presence of a large number of passengers, both men and women, she was seized by the stewardess or matron and one of the stewards, both in defendant’s employ, accused of being the mother of the child, and, in spite of her denials and against her will, dragged below, and compelled to go to the ship’s hospital. Upon entering the hospital, the ship’s surgeon appeared, compelled her to undress, struck her with a towel because she did not hurry to remove her clothing, compelled her to lie down in one of the berths in the hospital, and with the assistance of the matron, forcibly held her there and proceeded to an examination of her person. He inserted his fingers into her vagina at least twelve times, pounded on her stomach and squeezed and pinched her breasts for half an hour. At the close of the examination the surgeon stated to the matron that ‘she is the girl that had
See Merchant Shipping Act, 1894, §§ 303, 254.— [Rep,
34 U. S. Stat. at Large, 898, chap. 1134, as amd. by 36 id. 263, chap. 128. — [Rep.
34 U. S- Stat. at Large, 898, 899, § 2, as amd. by 36 id. 263, chap. 128, § 1.—[Rep.
34 U. S. Stat. at Large, 901, § 12; Id. 902, § 13.—[Rep.