Caliendo v. New York City Transit Authority , 177 N.Y.S.2d 539 ( 1958 )

In an action to recover damages for personal injuries the appeal is from a judgment entered on a jury verdict for $30,575 in favor of respondent. Appellant contends that the verdict was excessive and that the rule of damages charged by the court was erroneous. Judgment affirmed, with costs. Appellant did not except to the rule of damages charged by the court. In any event, the rule charged was more favorable to the appellant than it was entitled to. The claimed omissions in the charge were matters of common knowledge, which, we may presume, were considered by the jury. The amount of the verdict did not exceed the maximum permissible under the charge. The jury might well have considered that respondent’s earnings could have increased if he had not been disabled by the accident. Wenzel, Acting P. J., Beldock, Hallinan and Kleinfeld, JJ., concur; Murphy, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: The formula presented to the jury on the question of damages, in effect, the difference between retirement allowance and salary to age 65, was erroneous. A colloquy between court and counsel clearly shows it was understood that exception was taken to this portion of the charge.