84 N.Y.S. 881 | N.Y. App. Div. | 1903
The plaintiffs have recovered $200 for damages inflicted upon their harness and wagon in consequence of a collision with one of the defendant’s trains at a railway crossing. If there was nothing in the evidence bearing upon the question of contributory negligence except the extracts from the testimony printed in the appellant’s brief, the defendant would be entitled to a reversal of the judgment on the ground that the plaintiffs’ driver of the wagon had not shown himself free from fault. That testimony, standing alone, would show that the driver never looked in the direction from which the train was coming until the horse was on the track. It appears from the minutes, however, that the witness immediately afterward qualified his statement on this subject by saying: “1 meant that I seen the train for the first time when I was on the track. I had looked before I got on the crossing.” I am satisfied that there was a question for the jury, both in regard to the defendant’s negligence and the plaintiffs’ freedom from contributory negligence.
It is manifest, however, that the verdict was excessive.. The jury awarded the plaintiffs $200. There was no dispute as to the value of the harness, which was fixed at $11. According to the evidence in behalf of the plaintiffs, they paid $135 for the wagon, and one of them swore that he valued it at $125. Taking the purchase price as the actual value at the time it was injured, the limit of permissible recovery was $135 plus $11, making a total of $146. The jury evidently increased this sum to $200 upon the assumption that the plaintiffs were also entitled to recover $5 a week as the usable value of a wagon which the plaintiffs hired to replace the injured vehicle. It seems to me quite clear, however, that this increase was not warranted under
Judgment modified by deducting therefrom the sum of $54, and, as modified,' affirmed, without costs of this appeal to either party. All concur.
