
    William Rowe, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Deparrtment,
    
    
      Filed December 7, 1894.)
    
    1. Negligence—Contributory—Presumption.
    Where no negligence on the part of the plaintiff is shown, it is properly assumed at the trial that he was free from contributory negligence.
    3. Appeal—Verdict.
    A verdict will not be disturbed as excessive, unless the amount is so great as to indicate that the jury were influenced by prejudice or passion.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.
    
      C. D. Prescott, "for app’lt; Timothy Ourtin, for resp’t.
   Hardin, P. J.

Chapter 565, art. 2, § 36, of the Laws of 1890, provides that “ all trains and locomotives on railroads crossing each other at grade shall come to a full stop before crossing, not less than two hundred nor more than eight hundred feet from th.e crossing and shall then cross only when the way is clear and upon a signal from the watchman stationed at the crossing.” The evidence discloses that the defendant did not comply with the statute, and by reason thereof the accident occurred. Its train, at the time of collision, was going at the rate of about ten miles an hour. No negligence was shown on the part of the plaintiff, and it was properly assumed at the trial that he was free from contributory negligence. Chapman v. New Haven R. R. Co., 19 N. Y. 341; Masterson v. N. Y. C. & H. R. R. R. Co., 84 id. 256; Bagley v. Bowe, 105 id. 171. The car in which the plaintiff was seated was struck- by the defendant’s engine, and a hole knocked in it, and on the occasion of the collision the car in which the plaintiff was seated was thrown off the track, and apparently with sufficient force to overturn the freight house. The engine and smokestack and cowcatcher, after leaving the track, were severed from the tender of the engine; and evidence was given tending to show that the plaintiff was thrown from the seat he was sitting upon, striking upon his left hip and side, and that he was thrown across the car, which was tipped over on its side; and on the morning of the accident the plaintiff found bruises on his left hip and side and several other places on his back, and he oti that day procured liniment of Dr.'Liudslay, and applied it to the injured parts, and there is some evidence tending to show that the morning he arrived home he was lame, looked pale and haggard, and subsequently thereto was obliged to carry a cane for several months, and that prior to the injuries he was a strong, healthy man, about twenty-five years of age; that he had theretofore never received any injuries, or been ailing; that his usual weight was from 185 to 190 pounds, and that his weight at the time of the trial (October 9, 1893) was 161 pounds. Upon the trial several physicians in behalf of the plaintiff testified in effect that the defendant’s left limb is shorter than the right, and that there is a curvature of the spine in the lumbar region; that the left side of the pelvis was let down or lowered, and that the buttock on the left side was smaller than the right, and that the left limb, near the hip, was smaller, and the flesh flabby, and measured less than the right, and that the right shoulder was lowered, and that a deformity exists which is quite observable. Numerous hypothetical questions were propounded to the physicians called on either side, and their opinions somewhat differ as to the physical condition of the plaintiff at the time of the trial, and as to the causes which induced the conditions found upon an examination of the plaintiff, and as to whether the injuries will be of short duration, recovered from within a limited period, or whether they will be permanent. One of the physicians testified that “a degree of inflammation severe enough to produce permanent changes in the length of the limb would be attended by heat, pain, swelling and a much restricted function or ability to move the joint; a limitation of motion.” Dr. Sutton, one of the defendant’s physicians, testifies: “ I don’t think he (plaintiff) could have been injured in the accident sufficiently to have produced any shortening of the limb, which I say was the basis of the other trouble, without having been disabled for some considerable time.” And Dr. Flandrau testified: “The obliquity of the spine, and all that sort of thing, results from the shortening of the limb. It is wholly compensatory.” And the-physicians, in their opinions, seem to indicate that if the plaintiff had been sufficiently injured in the accident to have produced the shortening of his left leg as stated, he would have been immediately and continuously disabled; and the defendant gave evidence from several witnesses tending to establish a declaration made by plaintiff after, the accident that he had not received any injuries of any importance.

The defendant produced considerable evidence tending to show the habits and practices of the plaintiff, and his acts and doings subsequent to the injuries, with a view of indicating that he had received no such injuries as were detailed by him and his witnesses. Among other circumstances disclosed by the evidence of the defendant, it appears that the plaintiff attended a raising of a church bell at West Monroe, and aided in placing the same in the belfry, and that the plaintiff volunteered to aid in properly placing it; that he climbed a ladder, and went over the roof into the belfry, and that this occurred within a month of the accident; and that some two months and a half after the accident the plaintiff attended a barn raising, aided in elevating the timbers, and wrent on top of the beams and drove in the pins to the frame, and that at about the same time he was at Danforth’s cider mill two hours, shovelling apples into a hopper, feeding the mill that ground the apples, and that he aided also in filling the barrels with cider from the vat, and in hauling poles in the fall; and that in the early spring after the accident he went to spearing fish, wading in the water, holding a lantern; and that on one' occasion he bought a wagon and tested it by lifting it; that he attended a picnic, and engaged in selling “ fakir wares ’’; that he did some harrowing and hoeing and chopped wood for family use, and drove in a wagon around the country, buying chickens, and that he drove on two occasions to Syracuse, some twenty miles from his residence, and that apparently he walked without impediment when he desired to; and also furnished evidence of various other acts performed by him ; and also called witnesses describing his appearance and condition, tending to indicate that he had received little or no injuries. One of the witnesses called testifies: “The state that I found him in was caused from natural conditions; that they were congenital.” Some of the incidents to which allusion has been made were disputed and explained by the plaintiff as a witness upon the stand, and it is pointedly urged by the learned counsel for the appellant that the acts and circumstances disclosed to which, in part, allusion has been made are wholly inconsistent with the fact of a serious injury at the accident,” and that there is “ no testimony that warrants the amount of the verdict in this case;” and the learned counsel calls our attention to Kummer v. C. & T. St. R. R. Co., 21 N. Y. Supp. 941, where it was said “It is the right and duty of the general term, on appeal from an order denying a new trial, to reverse the order when, in its opinion, upon the evidence, the case of the respondent is a fabrication; ” and to the case of Hamilton v. Third Ave. R. R. Co., 53 N. Y. 29, and Smith v. Ætna L. Ins. Co., 49 id. 211, which support the same doctrine, and recognize and assert the power of the general term to review the evidence, and set aside a verdict not satisfactory to the judgment of the court. In considering the argument of the learned counsel for the appellant, we must bear in mind that where a question of fact has been fairly submitted by the trial judge to the jury, and he has listened to the testimony, and exercised his power of supervision over the verdict, his action in the premises is entitled to have some influence with an appellate court in reviewing a verdict which he has sanctioned in refusing an order to set it aside, and that it is not the province of this court to interfere with a verdict under such circumstances, unless the amount is so great as to indicate that the jury were influenced by passion or prejudice. Valentine v. Broadway & S. A. Railroad Co., 16 St. Rep. 602; 4 N. Y. Supp. 481; Quinn v. L. 1. Railroad Co., 34 Hun, 33; Harding v. N. Y., L. E. & W. Railroad Co., 36 Hun, 73; Ehrgott v. Mayor, 96 N. Y. 279. In Dougherty v. R., W. & O. Railroad Co., 45 St. Rep. 154; 18 N. Y. Supp. 841; affirmed, 138 N. Y. 641; 53 St. Rep. 929, this court sustained a verdict of $4,750 as not being excessive, where it appeared that the plaintiff “ was confined to bed eight weeks, suffered much pain, and his leg was permanently shortened, and his nervous system affected.” Upon a review of the evidence found in the case now in hand it appears there is a conflict in respect to the many essential facts relating to the extent and character of the plaintiff’s injuries, and there is considerable evidence tending to indicate that there has been an exaggeration on the one side, and many facts offered on the other tending to belittle the extent of the injuries sustained by the plaintiff ; and perhaps, if the question was an original one, and we were at liberty to follow that line of evidence which makes most favorable for the defendant, we might reach a different conclusion from the one pronounced by the jury as to the extent of the injuries sustained by the plaintiff. However, we regard it as within the province of the jury to determine where the truth is when the evidence is conflicting, and that the verdict under the circumstances is not such a one as indicates partiality, prejudice, or corruption, and therefore we reach the conclusion that within the authorities that are applicable to such situations it is the duty of the court to sanction the verdict of the jury. Judgment and order affirmed, with costs.

All concur.  