
    John George Eberhardt, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      .Negligence—injury from being thrown from a street car by a sudden jerk resulting from the horses being whipped — a §7,000 verdict held not to be excessive.
    
    In an action brought to recover damages for personal injuries, it'appeared that the plaintiff boarded one of the defendant’s street cars and, as there were no' . vacant seats inside of the car, went upon the platform where there were six men, including the driver; that tbe plaintiff stood with his right hand holding onto the “ grab-handle,” using his left hand to hold a string of fish which he' carried over his shoulder; that while the car was passing up a ■ grade, the driver struck the team, which was a spritéd one, with the whip; that the car was started with a sudden jerk and the plaintiff’s hold on the “grab-handle” was broken and he was thrown out upon the street and run. over by the car, sustaining injuries which necessitated the amputation of one • of his legs below the knee. ,
    
      Held, that a judgment rendered upon a verdict in favor of the. plaintiff should be •. affirmed;
    That the jury might properly determine that the defendant’s driver was guilty ' of. negligence in striking the horses without giving warning;
    That, gs it appeared that the plaintiff was a man twenty-eight years of age, who, prior to the accident was earning twenty dollars per month in addition to his board and washing, and that after being idle about one year he went to work again, earning about .five dollars per month in addition to-his board and washing, a verdict of seven thousand dollars would' not be set aside on the ground that it was excessive;
    That the trial court properly set aside, on-the -ground that it was' inadequate, a ■verdict for §1,000, rendered upon a former trial of the case.
    Jenks, J., dissented.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings oil the 13th day of June, 1901, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 1st day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Theodore JEL. Lord and Llenry A. Robinson [Charles F. Brown, with them on the brief], for the appellant.
    
      Stephen O. Baldwin, for the respondent.
   Woodward, J.:

This action has been tried twice. Upon the first trial the jury found a verdict in favor of the plaintiff for $1,000, which on motion of the plaintiff was set aside and a new trial granted- on the ground that the damages were inadequate. The plaintiff, a young man of twenty-eight, who was earning twenty dollars per month, with his board, washing, etc., was run over by one of defendant’s cars, resulting in the amputation of one of his legs just below the knee. After being idle about one year the plaintiff was again at work, earning about five dollars per month, in addition to his board and washing, and the learned court, at Trial Term, very properly, we believe, set the verdict aside as inadequate. Certainly if the defendant was responsible for the injury the sum of $1,000 was entirely inadequate to compensate him for the suffering and the loss of earning power' which resulted, and the verdict must have been arrived at, not from a consideration of the evidence, but from a spirit of compromise, which denied to the plaintiff substantial justice. We are of opinion that the order appealed from should be affirmed.

In the meantime the case has been tried a second time, resulting in a verdict for $7,000, and from the judgment entered, and from an order denying a motion for a new trial, appeal comes to this ■court. The appellant urges that no negligence was shown on the part of the defendant’s driver, but an examination of the evidence convinces us that it is sufficient to support the verdict of the jury upon this point. The theory of the case which must have been accepted by the jury was that the plaintiff, with several companions who had been upon a successful fishing excursion, boarded one of the cars of the defendant, bound north on First avenue, the plaintiff taking a position on the front platform. The car was full, or at least there were no vacant seats inside of the car, and the plaintiff, carrying seventeen fish, weighing about one pound each, was upon the front platform with six other men, including the driver, some ■of them being obliged to stand upon the steps and to hold onto the bars or rails provided for that purpose. While in this position the conductor collected the fares, and the plaintiff stood'with his right hand holding onto, the “grab-handle,” as it is described■ in the tes-. timony, while the "other was used to hold the fish which were carried on a string thrown over his shoulder. While the car was passing up a grade, and when nearing the summit, the driver struck the horses, a spirited team, with the whip, the car was started with a sudden, jerk, the plaintiff’s hold upon the grab-handle was broken and he was thrown out upon the street in such a manner that he was dragged under the car and run over, resulting in the crushing ot one of his legs so that amputation below the knee was necessary. The appellant insists that it is not negligence as matter of law to use a whip upon horses used in drawing street cars, and we quite agree with this proposition, but we are persuaded that under, the circumstances detailed by the- plaintiff and his witnesses the jury might properly determine, as a matter of fact, that with the platform loaded as this one Was, and with a spirited team to handle, the defendant’s driver was not justified in striking the horses without giving warning, and that he was guilty of negligence in so doing.

It is difficult to distinguish this case from that of Nolan v. Brookslyn City & Newtown R. R. Co. (87 N. Y. 63) except in points which are not favorable to the defendant, in the present action; and the case having been submitted to the jury upon a-conflict of evidence, and the trial court, with the parties before it, having refused to grant a new trial, we are not disposed to interfere.

We find no reversible error in the admission of evidence upon cross-examination, and the verdict for $7,000 is not so far excessive as to warrant the conclusion that the jury was actuated by improper-motives in reaching its conclusion.

The judgment and order should be modified by deducting therefrom the costs and disbursements of the first trial, which should have been imposed on setting aside the first verdict on plaintiff’s motion, and as thus modified affirmed, without costs.

All concurred, except Jenks, J., dissenting.

Judgment and order modified, by deducting therefrom the costs and. disbursements of the first trial, which should have been -imposed on setting aside the'first verdict oh plaintiff’s motion, and as thus modified affirmed; without costs. 
      
       See, for this appeal and decision, post, p. 620.
     