
    GARRET DEVOE, Respondent, v. BENJAMIN VAN VRANKEN, Appellant.
    
      Evidence — action to recover damages for a personal injury — when the excessive use of intoxicating liquor by the plaintiff, prior to the accident, may be shown in reduction of damages.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for injuries alleged to have been caused to plaintiff, by his being thrown against the dashboard of a wagon. He was in the wagon with one Deming, who was driving. It was in the night, and the night was dark. The horse ran against a barrier'which .defendant had created in the highway around an excavation
    The defendant offered to show that the plaintiff’s habits as to the use of intoxicating liquors had been bad ; that he had been unable from constitutional condition or otherwise, to do a full day’s wort; that the use of intoxicating liquor had rendered him unqualified. This was offered in mitigation of damages. It was objected to by the plaintiff and excluded.
    The plaintiff had previously testified that the effect of the accident had been that he could not do any hard work ; that he could not do a day’s work as he used to. A physician had testified as to the plaintiff’s having internal hernia (claimed to have been caused by the accident), and that such hernia probably created to a laboring man an amount of disability equal to one-half.
    The court at General Term said: “We think that in view of this proof previously given by the plaintiff, it was competent to prove that his previous habits had been such that he was unable to do a full day’s work. The excessive use of intoxicating liquor does unfit men for doing work, and the extent of the plaintiff’s pecuniary damage might have been modified in the minds of the jury by the proof excluded.
    
      Alexander J. Thomson, for the appellant.
    
      Yates & Gutter, for the respondent.
   Opinion by-the court.

Present — Learned, P. J., Boardman and Bookes, JL

Judgment reversed, new trial granted; costs to abide event.  