Summary
In Pesant v. Met. St. R. Co. (96 App. Div. 634), where a similar question was involved, this court reversed the order and reinstated the verdict upon condition that the plaintiff would stipulate to reduce it to a sum commensurate with the damages proved.
Summary of this case from Robinson v. Interurban Street Railway Co.Opinion
July Term, 1904.
Upon plaintiff stipulating to reduce verdict to $3,000 order reversed, without costs, and verdict reinstated to that extent, otherwise order affirmed, with costs.
The jury having found upon satisfactory evidence that the defendant was negligent the plaintiff was entitled to recover his damages, which would include his pain and suffering, impairment of his general health and such injuries as were both temporary and permanent. With respect to the latter, there were two theories which were fairly fought out upon the trial, one advanced by the plaintiff that his impaired health and physical condition, which was conceded, were due directly to the accident, and the other advanced by the defendant that the plaintiff at the time of the trial was suffering from tuberculosis, which, being a germ disease, could not be regarded as a direct result of the accident. The court fully protected the defendant, in effect stating to the jury in the course of the charge that if they found that the plaintiff was suffering at the time of the trial from tuberculosis, he could not for that disease recover anything of the defendant. The learned trial judge, in setting aside the verdict, did so, as appears from his opinion, upon the ground that the preponderance of evidence made it reasonably certain that the plaintiff at the time of the trial was suffering from tuberculosis, and that, therefore, the verdict should not stand. The error into which we think he has fallen in this disposition is in assuming that the jury disregarded his instructions or went contrary to the weight of the evidence, and rendered their verdict after having reached the conclusion that the plaintiff at the time of the trial was not suffering from tuberculosis. We can find nothing in this record nor in the form of the verdict which would justify such assumption. The verdict, it is true, is excessive; but this may well have been due, not to the character of the plaintiff's injuries, but to the feeling which might naturally have been aroused in the minds of the jury from the gross negligence on the part of the motorman which led to the infliction of what must be regarded as serious injuries upon the plaintiff, and for which he showed himself to be entitled to compensation. This, it seems probable, was the view entertained by the learned trial judge on receipt of the verdict, because on the motion to set it aside on all the grounds mentioned in section 999 of the Code of Civil Procedure, he in effect denied the motion as to all of them by his statement that he would consider it upon the ground of excessive damages. Instead, however, of determining this question, which was the one to which counsel were thus called upon naturally to direct their attention, he concluded some time after the trial and after further deliberation that the verdict was contrary to the law and to the evidence; and this, as we have endeavored to point out, was, as shown by his opinion to which we have referred, based upon a misapprehension of the way in which the question whether the plaintiff's condition at the time of the trial was or was not the direct result of the accident was presented to the jury. We think, on an examination of the proceedings upon the trial, that the case was fairly tried and that the plaintiff was entitled to have the verdict of the jury in his favor stand; but we think that the verdict was excessive in amount. This, however, the trial judge, could have corrected by compelling the plaintiff to reduce the amount. We think that the verdict can be legally supported to the extent of $3,000. Therefore, upon the plaintiff stipulating to reduce the verdict to that amount, the order appealed from should be reversed, without costs, and the verdict reinstated to the extent of $3,000; but upon the refusal of the plaintiff so to stipulate, the order setting aside the verdict should be affirmed, with costs. Van Brunt, P.J., Patterson, McLaughlin and Hatch, JJ., concurred.