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Ivey v. Brooklyn Heights R. Co.

Supreme Court of New York, Appellate Division

July 25, 1901

IVEY
v.
BROOKLYN HEIGHTS R. CO.

Page 312

Appeal from trial term, Kings county.

Action by Claudia Ivey against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

[71 N.Y.S. 634] C.C. Clark, for appellant.

S.S. Whitehouse, for respondent.

Argued before GOODRICH, P.J., and WOODWARD, HIRSCHBERG, and SEWELL, JJ.

WOODWARD, J.

The liability of the defendant is conceded on this appeal; the action being brought to recover damages for personal injuries; the points raised being that the verdict for $4,500 is excessive, and that the court erred in its refusal to charge as requested by the defendant. Not every verdict which awards a greater sum than this court, sitting as a jury, might think would compensate the plaintiff for the injuries received, is to be set aside, to be followed by a new trial; for this would be to usurp the prerogatives of the jury, and to deny to the plaintiff his rights. If the evidence supports the verdict; if there are facts and inferences to be determined from the evidence, as to which fair and reasonable minded men might disagree,-it is for the jury to fix the amount of the damages, and this determination will not be disturbed unless the amount is palpably unreasonable.

In the case now before us the evidence shows that the plaintiff, a married woman, about 31 years of age at the time of the accident, and in fairly good health, fully capable of earning her own livelihood, was thrown from a car of the defendant while in the act of alighting, sustaining a fracture of three of her ribs on the right side, and a contusion of the shoulder and head; that her ribs and head hurt her continually; that she " was quivering," and that this condition had continued up to the trial, some 17 months after the accident; that she had been getting weak; that she was unable to work, and had been obliged to depend upon her friends for support, bet husband

Page 313

having died in the meantime; that she had tried to work, but had been obliged to give it up, the last effort being within five weeks of the trial; that whenever she tried to wash or sweep it cost her pain in her ribs and arm, and she got dizzy and had to give it up; that she has pains in her right side and shoulder, and it pains her on the right side to breathe; that she cannot take a long breath; that the breath is short; that she is nervous; and that there is a general deterioration in her health, which her physician testifies " might be the natural result of the injuries that she received." When we consider the fact that this woman is poor, she having resided in a single room with her invalid husband prior to his death, and having been accustomed to working out for a livelihood; when we consider that she is to-day only about 33 years of age, with an equal expectancy of life, and that she finds herself, 17 months after the accident, unable to take up the burdens of life, still suffering pain and inconvenience,-may it be said in fairness that the verdict is so far excessive that reasonable minded men, acting within the scope of their duty, might [71 N.Y.S. 635] not have reached the conclusion that the sum fixed upon was a just compensation for the loss which she has sustained? We think not.

After the court had charged the jury upon the question of negligence and contributory negligence, and had charged that, " if the plaintiff is entitled to a verdict, she is entitled to compensation for the pain she has suffered and the disability caused by the accident. It is for you to say what that is, and how much; and, if you find her entitled to a verdict, you must give her full compensation therefor." -defendant's counsel took an exception to the use of the word " full," . and the court modified the language by substituting " adequate." Defendant's counsel made several further requests to charge, which bring up no question here, and the jury retired. Subsequently defendant's counsel asked that the jury be recalled, and that the court charge " that there is no permanent injury in this case." This the court declined to do, stating, though not in the presence of the jury, that:

" I do not remember all the evidence. I do not remember whether there is any evidence of permanent injury or not, because I did not follow it very closely."

Plaintiff's counsel waived recalling the jury, and defendant was given an exception. While it is true that there was no ...


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