Morris Whitehouse, for appellant.
Chas. J. Patterson, for respondent.
We are of opinion that the question as to the contributory negligence of the plaintiff, and the other question, as to the negligence of the motorman in the employ of the defendant, were properly submitted to the jury. The railroad company did not have the paramount right of way, as would be the case if the truck had been driving in the street on which the tracks of the defendant were laid. The plaintiff was driving across the tracks on an intersecting street, and the right of way was equal between the parties. O'Neil v. R.R. Co., 129 N.Y. 125; Buhrens v. R.R. Co., 6 N.Y.S. 224; 125 N.Y. 702.
We have carefully considered the testimony in the case bearing on the question of damages, and conclude that the verdict for $15,000 was excessive. The plaintiff was earning, at the time of his injury, twelve dollars per week, and was confined in the hospital by reason of his injury for a period of about a year. During a portion of the time he suffered pain, and for his loss of time while in the hospital, and for his suffering, he is entitled to just compensation. His permanent injuries, for which he is also entitled to compensation, are as follows: The fleshy part of the calf of the right leg is two inches larger in circumference than the other; the veins are in a varicose condition; there are three scars, and the leg is so impaired by the varicose veins that he cannot do hard or heavy work. He can walk and use his leg, but if he engaged in hard work his leg might be further injured. The only permanent injury which is seriously to be considered is the varicose veins. It is a well-known fact that many persons are so afflicted, and that such a condition impairs the use of a limb for long walks, or perhaps heavy work, but, with care and proper appliances, such an injury does not deprive the person of the use of the leg for nearly all practical purposes. As said before, the plaintiff was entitled to compensation for loss of wages during the time he could not work, for all pain and suffering, the result of the injury, and for the permanent impairment of the use of his leg. The sum of $15,000 seems to us grossly excessive, in view of the injuries sustained by plaintiff, and we conclude that the verdict should be reduced to the sum of $8,000.
Judgment and order denying new trial reversed and a new trial granted, costs to abide the event, unless plaintiff consents to reduce the verdict to $8,000, and the allowance to five per cent on that amount, in which case the judgment and order denying new trial should be affirmed, without costs.
VAN WYCK, J., concurs.
Judgment and order reversed and new trial granted, costs to abide event, unless plaintiff stipulates to reduce the verdict to $8,000 and the allowance to five per cent thereon, in which case judgment and order affirmed, without costs.