Gallagher v. State , 288 N.Y.S. 2 ( 1936 )

Appeal by claimant from a judgment of the Court of Claims in his favor in the sum of $1,500. The only question presented is the amount of damages to which claimant is entitled. On January 11, 1930, while claimant was a patient and an inmate of the Middletown State Homeopathic Hospital at Middletown, N. Y., he was directed to go to the flour store room in the hospital for the purpose of moving sacks of flour. While claimant was engaged in such occupation he.was struck and injured by various bags of flour which had been insecurely placed in position. The Court of Claims found that he sustained the following injuries: “fracture of neck of right femur resulting in one inch shortening of right thigh, atrophy of right thigh and right calf, and pain in connection with said injury, continuing from time to time, up to the time of trial.” The medical testimony showed that at the time of the trial on October 30, 1934, the claimant walked with a limp, that his right leg was smaller than the left, that the shortening of the leg is permanent, that the flexion of the hip joint was restricted to the extent of. twenty-five per cent and that as a result external rotation thereof was painful and that such condition is a permanent one. The damages awarded by the Court of Claims are inadequate. The court hereby modifies the twelfth finding of fact made by the court below to read as follows: “ That by reason of the foregoing said Walter M. Gallagher was damaged in the sum of $5,000.” The court hereby modifies the conclusion of law of the court below to read as follows: “ That Albert W. Gallagher as Committee of Walter M. Gallagher is entitled to an award and judgment against the State of New York in the sum of $5,000.” The court hereby modifies the judgment so as to direct that claimant shall recover the sum of $5,000 from the State of New York in settlement of his claim instead of the sum of $1,500, as provided by such judgment. Judgment appealed from is modified in the particulars indicated herein, and as so modified is affirmed, with costs to the appellant. Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ., concur.