65 N.Y.S. 1077 | N.Y. App. Div. | 1900
While the amount of damages in cases of this kind is largely with the jury, yet if the verdict be unreasonably small, the case may be sent back for the reconsideration of another jury. (Phillips v. London & South Western Railway Co., 4 Q. B. 406; 5 id. 78 ; Armytage v. Haley, 4 id. 917 ; Brown v. Foster, 1 App. Div. 578 ; Morris v. Met. St. Railway Co., 51 id. 512; Miller v. D., L.
The question is whether the case at bar warrants the exercise of this power. On March 1, 1899, a boy aged seven years was struck by a fender of the defendant’s car, was thrown in the air, then was caught on the fender, and was carried thereon for some distance until he was rescued. It is not contended that he was maimed, or that any bones were broken, or that there was, at the time, any apparent physical injury. Indeed, several of the plaintiff’s witnesses testify that the lad when rescued showed no signs of injury. Dr. Waugh, who was called in six days thereafter, says that he found the lad in bed suffering from shock, and in so critical a condition that he advised calling in Dr. Brush. "When asked what, in the appearance of the boy, led him to think he had met with serious injury, he answered that he had already stated all that he saw and observed. Reference to his prior testimony shows that he had stated that the lad’s breathing was irregular; that he was uncoh
For the defendant, Dr. Riggs, one of its examining physicians, testified that when he examined the lad on March ninth, with Drs. Brim and Brush, he found him sitting up in bed, very bright and intelligent. His temperature was two-fiftlis of a degree above normal and lie had some cold and bronchitis, but his general physical condition was simply that of a slight rise in temperature, with a cough attended with some mucous sounds in his chest, due to bronchitis. The pupils reacted to the light, the pulse was 110, and the reflexes “and so on” were normal.. There were no marks of physical injury and no evidence of meningitis. Another examination was
If, for instance, the lad had lost a leg or an arm, so that there could be no question as to his injuries, or if he had been otherwise physically injured, so that no evidence could explain his injury away, and the jury had returned a verdict in an amount so small as “ to fail in logic when compared with others, or as to shock the moral sense,” then the case might well call for an interference in the interests of adequate compensation. And so in this case we might well be warranted in directing a trial before a new jury if the evidence morally established that the lad was suffering from imbecility caused by the injury, reasonably certain to be permanent, for then the promise of life is but the physical existence of a dependent. But there is not such evidence in this case as moved the courts in the authorities cited, and in many others that need not be stated. The question turns upon the physical and mental condition of a little child, and there is serious dispute as to his manifestations, physical and mental, and as to the medical conclusions to be drawn therefrom. On the one hand, there is opinion of serious disease and imbecility ; on the other, opinion that finds no serious impairment of his mentality or of his physique. The physicians are not in accord as to the facts elicited upon their examinations, and they disagree upon the significance of the facts ascertained and the objective symptoms made manifest. Thus there were two opposing theories, and the function of the jury was to decide between them. Numbers in experts are not more controlling than numbers in ordinary witnesses. Whether the jury thought that the opinions of the plaintiff’s physicians were colored by professional partisanship, or were unfounded
If the exclusion of the questions to the witness Smith, whether she noticed any difference in his (the lad’s) personal appearance, or whether he is “ as fleshy as he was when he went to school,” were errors, such errors present no basis for reversal, inasmuch as the facts sought to be elicited thereby were substantially presented to the jury by other testimony. (Hamilton v. Forsyth, 77 Hun, 578; Stever v. N. Y. C. & H. R. R. R. Co., 7 App. Div. 392.)
The charge of the learned court upon the question of damages and the elements thereof was plain and full. It was unexcepted to, and, in law, was unexceptionable.
The judgment and order are affirmed.
Woodwabd, J., absent.
Judgment and order unanimously affirmed, with costs.