
    Rudolph De Wardener, Resp’t, v. Metropolitan Street Railway Company, App’lt.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      Filed Feb. 4, 1896.)
    
    1. Damages—Excessive.
    Where the jury in assessing damages in an action for personal injuries, is induced, either by sympathy for the plaintiff or a desire to punish the defendant, to add anything to the amount of their verdict, it is, to this extent, excessive.
    2. Same.
    In such case, it is not only the power, hut the duty, of the court to set aside a verdict, where the sum awarded by the jury has been enlarged beyond the measure of compensation as the result of sympathy and prejudice.
    3. Same.
    A verdict for $25,000, for permahent injury to the left arm, was held, in this case, to be excessive.
    Appeal from a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial.
    Thomas S. Moore, or app’lt; George Zabriskie, for resp’t.
   BARTLETT, J.

—The only question which this court is called upon tó decide on the present appeal is whether or not the damages awarded the plaintiff by the jury were excessive. The judgment was not assailed on any other ground in the oral argument, nor is any other reason for reversal suggested in the brief of the counsel for the appellant. I think the amount of the verdict plainly exceeds any sum which could fairly be regarded as compensation for the injuries which the plaintiff sustained. His left arm was badly injured, and its usefulness to a great extent permanently impaired. A difficult surgical operation became necessary, and the plaintiff, in the course of his illness, was compelled to undergo much suffering. For all this he was entitled to be compensated, and the fact that the jury has given even very liberal compensation in such a case does not warrant the court in setting aside the verdict. For his expenditures on account of surgical and medical treatment, amounting to $3,497.85, the plaintiff was also entitled to be repaid. According to the plaintiff’s testimony, he was able to walk 10 or 12 miles of a morning prior to the accident, but since he was hurt a walk of 2 or 3 miles made him very tired. Before the accident he was a great reader, but at the time of the trial he could not read three pages, because lie got tired, and did not know what he was reading. He was very good natured formerly, but now he had become very irritable, and matters irritated him very much. While these matters were entirely proper for the jury to take into consideration in assessing the damages, it is to be noted that there is, no evidence whatever as to the probable duration of the nervous and mental coniditions thus described by the plaintiff, assuming that they were the result of the injury caused by the negligence of the defendant The amount of the verdict indicates that the jury acted on the assumption that such conditions were permanent, or would be permanent, although there was no proof of that fact. No loss of earnings was shown, and the only permanent ■ injury established by the proof was that to the arm already mentioned. Upon these circumstances, it seems to me impossible to resist the conclusion that the jury, in assessing the damages at §25,000, must have been actuated, to a very considerable degree, either by sympathy for the plaintiff or a desire to punish the defendant. If they were in-' duced, by either feeling, to add anything to the amount of their verdict, it would be, to that extent, excessive. It is not only the power,' but the duty, of this court to set aside a verdict, in an action to recover damages for personal injuries, where that sum awarded by the jury has been enlarged beyond the measnre of compensation as the result of sympathy and prejudice. Houghkirk v. Canal Co., 92 N. Y. 219.

After a very careful consideration of all evidence in this case relating to the injuries sustained by the plaintiff, I am satisfied that a verdict which awarded him $15,000 in addition to the expenses which he incurred for surgical and medical treameiit would have gone to the verge permissible liberality in the assessment of damages in such an action as this.

I think the judgment should be reversed, and a new trial granted, unless the plaintiff stipulates to reduce the verdict to §18,497.85.

All concur.  