Quinn v. Long Island Railroad , 41 N.Y. Sup. Ct. 331 ( 1884 )

Barnard, P. J.:

The plaintiff, while being carried by defendant as a passenger, was negligently injured, without any fault on his part; although the pleadings put in issue the liability of the defendant, its liability was admitted as part of the case upon the trial. The cause of the accident does not appear. There was a crash, and the front of the car in which plaintiff was sitting seemed to cave in. The plaintiff was thrown under the wreck. It was not erroneous to permit the witness Smith to testify to the circumstances surrounding the accident and the steps he took to release the plaintiff. He found the plaintiff so jammed in and fastened by the broken pieces of the train that he could not extricate him. He stated that he extricated another passenger and 'then returned to aid in extricating the plaintiff, the result of which testimony was vital -,to the plaintiff’s ease, in that it showed that the plaintiff remained in a condition of extreme pain, and under circumstances calculated to inspire terror, for thirty or forty minutes. The evidence shows that the plaintiff was held down by the fragments of the train, which were the apparent support of the tender and locomotive. The tender was thus supported about two feet above him. The plaintiff was conscious of the risk of removing the obstruction which held him, lest such removal should cause him to be crushed by the tender when the support to it was removed. In this extremity he desired Smith to kill him. The judge charged the jury that they could take into consideration “ his situation at that time; how painful, how trying it was.” This precise question has not been decided in this State. In the case of Ransom v. New York, and Erie Railroad (15 N. Y., 415) the Court of Appeals held that bodily pain and suffering of the plaintiff from the injuries were proper subjects of compensation. In deciding this case the court cite with approval Seger v. The Town of Barkhamsted (22 Conn., 290), where the instruction to the jury was that “ they had a right to consider all the circumstances of peril and danger attending the accident.” The conclusion of the appellate court in that case was that the injury is not confined to his wounds and bruises upon his body, but extends to his mental suffering.

The jury gave the plaintiff a verdict’for $5,000. It is claimed to be excessive. The evidence shows the plaintiff to have been fifty-four years of age; three of his ribs were fractured; he received a crushing wound on the lower part of the leg, above the ankle joint; he was also injured above the knee; he was confined six or seven weeks; he suffered great pain; he had difficulty in breathing on the left side. “ It pains,” says the physician, “ during respiration every time the man breathes; he is lame yet.” This was some nine mouths after the accident. “ It may be years before time will cease the difficulty,” is the testimony of his surgeon. Under this evidence an appellate court cannot say that the jury was influenced by passion, partiality or prejudice. We cannot say from a review of the evidence that the verdict was not well supported.

The judgment and order denying a new trial should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.