Citation Numbers: 89 N.Y.S. 314
Judges: Brien
Filed Date: 7/13/1904
Status: Precedential
Modified Date: 9/9/2022
The jury having found, upon satisfactory evidence, that the defendant was negligent, the plaintiff was entitled to recover his damages, which would include his pain and suffering, impairment of his general health, and such injuries as were both temporary and permanent. With respect to the latter, there were two theories which were fairly fought out upon the trial—one, advanced by the plaintiff, that his impaired health and physical condition, which were conceded, were due directly to the accident; and the other, advanced by the defendant, that the plaintiff at the time of the trial was suffering from tuberculosis, which, being a germ disease, could not be regarded as a direct result of the accident. The court fully protected the defendant; in effect stating to the jury in the course of the charge that, if they found that the plaintiff was suffering at the time of the trial from tuberculosis, he could not for that disease recover anything of the defendant. The learned trial judge, in setting aside the verdict, did so, as appears from his opinion, upon the ground that the preponderance of
We think, on an examination of the proceedings upon the trial, that the case was fairly tried, and that the plaintiff was entitled to havé the verdict of the jury in his favor stand, but we think that the verdict was excessive in amount. This, however, the trial judge could have corrected by compelling the plaintiff to reduce the amount. We think that the verdict can be legally supported to the extent of $3,000. Therefore, upon the plaintiff .stipulating to reduce the verdict to that amount, the order appealed from should be reversed, without costs, and the verdict reinstated to the extent of $3,000; but, upon the refusal of the plaintiff so to stipulate, the order setting aside the verdict should be affirmed, with costs. All concur.