Smith v. Huntington Lumber & Coal Co. , 211 A.D. 807 ( 1924 )

The" issue as to defendant’s negligence and the alleged contributory negligence of plaintiff was submitted to the jury in a charge to which no exception was taken. There was but one exception to the charge by defendant, and this was obviated by the subsequent remarks of the learned trial justice. Defendant did not claim at the trial that an issue of fact was not presented on the question of negligence. No motion for nonsuit was made on that ground. We think that the record presents no ease for interfering with the verdict on the ground that it is contrary to the evidence. As to the amount of the verdict, $20,000, we are of opinion that the award of damages is excessive. The judgment and order are reversed and a new trial granted, with costs to abide the event, unless plaintiff shall within twenty days file a stipulation consenting that the verdict be reduced to $15,000. In the event of such stipulation the judgment and order are unanimously affirmed, without costs.

Kelly, P. J., Rich, Manning, Kelby and Kapper, JJ., concur.