45 N.Y.S. 920 | N.Y. App. Div. | 1897
■This action is to recover for damages for injuries sustained by the ■ plaintiff from having his leg caught and broken between the steps of two cars on the defendant’s road. The case presents no substantial cpestions lint those of fact. The accident to the plaintiff and his injury were not disputed. The defendant’s tracks were on the easterly side of Third avenue, south of One Hundred and Thirtieth street. At the intersection of One Hundred and Thirtieth street' the road turns into that street by a sharp curve to the west. Before the intersection of One Hundred and Thirtieth street is- reached the tracks on.Third avenue curve slightly to the west. Thé tracks were probably located in this position so as to .render the curve at One Hundred and Thirtieth street easier and less sharp. This results in a short, and slight reverse curve on Third avenue. The stand for
This brief narration of the occurrence shows that the case presented a clear question of fact. If the jury believed the plaintiff’s story, it was certainly permissible that they should find the plaintiff free from negligence, and the defendant at fault. The plaintiff had the right to seek to recover his hat, If, at the time he looked and saw no car approaching, the view of the approaching car being cut off by the turn at One Hundred and Thirtieth street and the presence of the cars on the stand, he was not guilty of negligence, or at least the jury might properly so find. At the same time, the jury might find that, if the motorman on the incoming car had exercised proper care, he would have discovered the presence of the plaintiff on
Two minor objections to- this recovery are raised by the appellant’s counsel. The court charged that, if the jury found that any witness was interested in the result of the action, they would give that fact such weight as they thought proper in determining the weight that should be -given to his evidence. The plaintiff’s counsel then said: <£ That, applies as well to the witnesses for the defendant as for the plaintiff,” to which the court responded : “Yes, I say to all the-wit- - nesses.” To this the defendant excepted. The criticism that is now made on this instruction is that It allowed.the jury to find that any or all the witnesses.'for the defendant were interested in the action. We think it is subject tó no such'construction. When the court said: “ Yes, I say to all the witnesses,” it did not mean to assert that all the witnesses, were interested, but that the instruction-applied to all the interested witnesses whether on the plaintiff’s side •or on that of the defendant. I think no one could misunderstand the meaning of the trial court.' If, however, it was susceptible of .misconstruction, it was not sufficient for ■ the defendant merely to -except to the court’s remark. It should have called the attention of the judge directly to the point, and have asked .the court to limit its •charge in such a way as. to prevent the possible danger of its misconstruction. . .
We think the evidence of the plaintiff’s earnings was properly admitted. The occupation in which he was engaged, in partnership.
The recovery in this case has been very large, much larger than . we should have given him for the injury, but, compared with other-recoveries which we have allowed to pass, we cannot say that it is so great as to justify our interference.
The judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order unanimously affirmed, with costs.