
    George Mezway vs. United Electric Railways Co.
    No.1541
    July 30, 1925.
   SUMNER, J.

Plaintiff lias brougnt suit to recover damages for an assault made upon him .by a conductor in the employ of the defendant company. The jury brought in a verdict- for the plaintiff in the sum of $350 and defendant has filed a motion for a new trial, thp only ground urged at the hearing being that the damages awarded are excessive.’

According to the testimony of the plaintiff, while riding in a car of the defendant company, he arose from his seat to alight, was ordered by the conductor to sit down, some words passed between them, the conductor pushed him' with his fingers, and finally punched him in the stomach and forced him to sit down, so that his head hit the window. He suffered no immediate" effect from the assault. Two days later he commenced to vomit, called in a physician, was confined to his bed for three weeks, was detained from his work for three weeks more, and is still suffering dizziness and stomach trouble.

The plaintiff is corroborated by a witness named George Michael, who was a passenger on the car. Michael testified that he heard words, saw the conductor put his hand on Mezway and tell him to sit down, with a light push. Later, he told him to sit down, punched him in the stomach and called him vile names. In his cross-examination witness said that the conductor hit Mezway in the stomach at the time that he called him vile names.

Hr. Tefft, a witness for the plaintiff, testified that he was called in on the Tuesday after the occurrence, that the plaintiff vomited, said he felt bad, was nervous, and claimed a soreness in ms stomach upon pressure, and also extreme pain: that he called twelve times at plaintiff’s house and that later the patient visited him nine times. The dates of the visits are not given, but presumably the calls at the house were made within two weeks after the alleged assault.

The conductor of the defendant company testified that this man was blocking the way, had his hand on the stanchion, and he put him from one side to another, that he did not punch him and that the plaintiff did not fall into the seat.

The plaintiff admitted that ”he had been struck on his left side in an accident two years and three months before, while riding in a jitney, ana that on March 16, 1924, he was knocked over on his side when a trolley hit a truck. He also’ said he could not tell whether he was suffering now from the last accident or whether the stomach trouble that he had was due to this occurrence.

The conductor’s testimony Is corroborated by Francis Conlon, a witness for the defence, who testified that the conductor pressed Mezway to one side and held him until the passengers got by, and that Mezway did not fall into the seat.

The Court will not question the opinion of -the jury that the plaintiff was in some w;ay assaulted either by the calling of names by the conductor or being roughly handled, but it does believe that the verdict is unjustifiably large. The plaintiff claims he was kept from his work six weeks, but one Smith, a witness called by the defendant, testified that he worked in the banber shop of the plaintiff at the time of the occurrence and he has no recollection of the plaintiff being laid up in bed at all, that he might have been away for a few hours during the day.

The physical effects claimed by the plaintiff to have resulted from the assault seem to the Court to be exaggerated. He did not call a doctor fpr two days and his witness Michael testified that he “did not think that it amounted to' anything.’! Dr. (Ju-tts, a witness for the defendant, said that a blow at the pit of the stomach should show results right away; that it would make one faint and uncomfortable for a short time, but ordinarily no serious results would follow.

For Plaintiff; Quinn, -Kernan «% Quinn.

For Defendant: Clifford Whipple.

The Court believes that $100 would be ample compensation to the plaintiff and accordingly grants the defendant’s petition for a new trial unless the plaintiff shall, in writing, within three days of the filing of this rescript, remit all of the verdict in excess of $100.  