Opinion
January, 1897.
Hoadly, Lauterbach Johnson (H.W. Mayer, of counsel), for appellant.
Maas Goldberg, for respondent.
The action was to recover $99.99 damages alleged to have been sustained by the plaintiff through the negligence of the defendant.
According to the proofs of the plaintiff (a professional violinist, and a member of the Damrosch orchestra), it appears that on the night of June 24, 1896, he was in company with one Hatch; that at Third avenue and Eighty-second street Hatch signaled to the gripman of an open car of the defendant to stop; that the signal was answered and the car came to a complete standstill. Hatch boarded the car first. The plaintiff followed him and grasped the stanchion of the car at the same aisle. He placed one foot on the car, but before he could get the other foot thereon the conductor started the car. The jerky movement of the car in starting threw the plaintiff to one side, and his violin case struck against a pillar of the elevated railroad, tearing the box apart, and splitting and otherwise injuring the violin.
The proof of these facts was sufficient to justify the jury in finding neligence on the part of the defendant, making it liable, for "the carrier must allow a passenger a reasonable time to get on and off the car, and if, while doing so, the car is started suddenly, and so as to produce a jerking motion, it is in and of itself an act of carelessness." Ganiard v. Rochester City R.R. Co., 50 Hun, 22, 24; affirmed, 121 N.Y. 661; and see Kinkade v. Railroad Co., 9 Misc. 273; affirmed, 149 N.Y. 615; Morison v. Railroad Co., 28 N.Y. St. Repr. 498; Demann v. Railroad Co., 10 Misc. 191; Paetzig v. Railroad Co., 12 id. 573; Medler v. Railroad Co., 36 N.Y. St. Repr. 89.
The defendant offered evidence contradicting the plaintiff, to show that he did not meet with any accident while getting into the car, but while voluntarily exchanging seats after he had got in. The conflict presented a question of credibility, which was properly sent to the jury, and in respect to which their finding should be accepted as conclusive. The defendant did not request the direction of a verdict in its favor, and took no exception to the charge of the justice, which fairly submitted the issues to the jury for determination.
The jury finding negligence on the part of the defendant, and the absence of any contributory act on the part of the plaintiff, rendered a verdict in his favor for the amount claimed.
The injury to the violin by the pillar of the elevated structure was the direct consequence of the defendant's negligence and the proximate cause of the injury. Cooley's Torts (2d ed.), 73 et seq.; Scott v. Shepherd, 3 Wils. 403; S.C., 2 W. Bl. 892; Clark v. Chambers, 3 Q.B. 327; Vandenburgh v. Truax, 4 Den. 464; Milwaukee, etc., R.R. Co. v. Kellogg, 94 U.S. 469; Lowery v. Manhattan Ry. Co., 99 N.Y. 158; Ryan v. Miller, 12 Daly, 77; affirmed, 99 N.Y. 665; Jex v. Straus, 122 id. 293, 297.
The next question is as to the damages awarded.
The general rule in actions for injury to property not caused by malice is compensation commensurate with the loss; and this embraces the expense of restoration of the property to soundness, compensation for the loss of it during the period of disability, and the difference between its value before the injury and after the cure or repair. 2 Sedg. Dam. (8th ed.), §§ 345, 592; Hutton v. Murphy, 9 Misc. 151. Indeed it would be difficult to arrive at the correct amount of damages until the article has been gone over by skillful hands to find whether it is repairable wholly or in part.
The expert Mullenhauer testified that he was familiar with the violin, and that before the accident it was worth $250 to $300; that the break caused by the accident was quite serious; that the reasonable cost for restoration to soundness was from $25 to $35; that the violin had been properly repaired, but that by reason of the crack it had lost vibration, and had a muffled tone, and that its depreciation in value was from $100 to $125.
The exceptions are without merit, and the judgment must be affirmed, with costs.
DALY, P.J., and BISCHOFF, J., concur.
Judgment affirmed, with costs.