
    TINNEY against THE NEW JERSEY STEAMBOAT COMPANY.
    
      Supreme Court, Third Department, Third District;
    
    
      General Term, January, 1872.
    Expert Evidence.—Excessive Damages.
    Persons who have been for many years in the business of transportation of passengers and are acquainted with the methods of the construction of steamboats," and the way in which the berths are put in, are competent to testify as to whether the berths on a certain steamboat were constructed in the manner usual upon the best boats built at the time of its construction.
    In considering the damage arising from peculiar injuries to the body, great weight should be given by the jury to the opinion of scientific witnesses accustomed to investigate the causes and effects of such injuries; and a' distinction should be made in favor of the opinion of those accustomed to use the most perfect instruments and processes, and who are acquainted with the most recent discoveries of science and most improved methods of treatment and investigation.
    A verdict of five thousand dollars damages set aside as excessive, where the plaintiff’s injury resulting from defendants’ negligence was a temporary loss of sight in one eye, which did not prevent him from carrying on Ms usual business.
    Appeal from an order denying a new trial.
    John 0. Tinney sued the New Jersey Steamboat Company for injuries suffered by Mm while being carried as a passenger on one of the defendants’ line of steamboats from Hew York to Albany. The plaintiff embarked on the defendant’s boat “ Dean Richmond,” at Hew York, and retired to sleep in a berth furnished him by the company, and to which Ms ticket entitled Mm. When the boat reached the dock at Albany, from some cause or other, the berth above that in which the plaintiff was sleeping, together with a passenger sleeping therein, fell down and injured the plaintiff’s eye. On the trial, the plaintiff, in his behalf, and to prove that a permanent dimness of vision has resulted to him from the accident, called Dr. WMtbeck, who testified accordingly, but on cross-examination said, that he did not use the opthalmoscope, or stereoscope, and did not make a specialty of diseases of the eye. That if he had used the stereoscope he might have been led t.o attribute to other causes the effects which he supposed were due to dimness of vision.
    The defendant then called Dr. Robertson, who testified that he made a specialty of diseases of the eye, used the opthalmoscope and stereoscope, and by their aid had examined plaintiff’s eye, and discovered no indications of permanent loss of vision.
    The defendant also called Messrs. Dumont & Harcourt, who testified that they were respectively the general agent and general managing agent of the defendant, and had been so for many years, and were acquainted with the construction of berths in steamboats generally. They were then asked:
    “Were the berths on the Richmond constructed in the most approved manner of the best steamboats .built about their time and since ?”
    Plaintiff objected that the witness was not competent. Objection sustained and exception taken.
    
      At the close of the case, the defendant, among other things, requested the court to charge:
    “ Twelfth. Considering the extraordinary character of the injuries alleged in this case, and the great difficulty attendant upon their proper investigation, great weight should be given by the jury to the opinion of scientific witnesses, accustomed to investigate the causes and effect of injuries to the eye, and a distinction should be made in favor of the opinion of those accustomed to use the most perfect instruments and processes, and who are acquainted with the most recent discoveries of science and most improved methods of treatment and investigation.”
    The' court refused so to charge, saying to the jury:
    “That is all a question for you. It is not the business of the court to settle the weight of evidence.”
    To this refusal defendant excepted. The jury gave a verdict for the plaintiff with five thousand dollars damages.
    A motion by defendant upon the judge’s minutes for a new trial on the ground that the verdict was against evidence and on the ground of excessive damages, was refused.
    From the judgment entered on the verdict and from the order denying a new trial, defendant appealed to the general term.
    
      W. P. Prentice, for defendant, appellant,
    on the point that the judge erred in refusing to charge the twelfth request, cited Tucker v. Williams, 2 Hilt., 562; Anthony v. Smith, 4 Bosw., 503; Smith v. Gugerty, 4 Barb., 614; Brehm v. Great Western R. R. Co., 34 Id., 250).
    
      Beach & Smith, for plaintiff, respondent.
   By the Court.

We think that the judge erred upon the trial, in the rejection of evidence, offered to prove by the witnesses Dumont & Harcourt, the manner in which the berths of the steamer were constructed. The testimony was material, and bore upon the question of the defendant’s negligence; and the witnesses, from their knowledge and experience, were competent to testify on the subject.

The courhcommitted an error in refusing to charge the twelfth request made by the counsel for the defendant. The proposition there laid down was correct and should have been presented to the jury.

There was also error in refusing the motion for a new trial upon the minutes, upon the ground that the damages were excessive. The amount on the verdict was large, and not commensurable with the character of the injury, which was merely a temporary loss of sight, if any. It evinces that the jury must have been misled, not prejudiced, and presents a case for the interference of the court for that reason.

As the grounds stated are sufficient to authorize a new trial, it is not important to examine the other questions raised.

The judgment and order must, be reversed and a new trial granted, with costs to abide the event. 
      
       Present, Miller, P. J., and Potter and Parker, JJ.
     