
    Justin Herold, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—verdict in an action for injuries in favor of a practicing physician of $12,000 held to be excessive.
    
    When a verdict for $12,000 rendered in an .action brought by a practicing ' physician to recover damages resulting from an injury to his leg caused by the alleged negligence of the defendant, is excessive and the judgment entered thereon should be reduced to the sum of $7,788.58, considered.
    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 New York on the 26th day of May, 1903, upon the verdict of a jury for $12,000; also from an order entered in said clerk’s office on the 4th day of May, 1903, denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 18th day of May, 1903, relaxing the costs and granting the plaintiff an extra allowance.
    
      Charles F. Brown, for the appellant.
    
      Stephen C. Baldwin, for the respondent.
   O’Brien, J.:

The only question upon this appeal is whether the verdict for $12,000 is excessive.. The plaintiff has been a physician for twenty-'two years, and at the time of the accident his practice was worth about $6,000 a year. Under the pleadings the learned trial judge in his charge to the jury correctly confined their consideration in assessing the damages to two items, first, compensation for the injuries inflicted and the consequent pain endured, and, second, pecuniary loss sustained by reason of impaired earning capacity.

With respect to the first, it appeared that the plaintiff’s right leg from the knee down was crushed and bruised to such an extent that it was necessary to remove him in an ambulance, and he was thereafter confined to his bed from May 31, 1900, the date of the accident, to July 2, 1900; and to his house until July twelfth, when he was'able to go out on crutches, which he continued to use until August, and for six weeks thereafter he found it necessary to use a cane in walking. His ankle undoubtedly suffered a severe injury so that to the date of the trial he was obliged to wear a steel plate in his shoe to support the ankle, and he is prevented from taking long walks. This, it was shown, to some extent interfered with his practice because it rendered him incapable of moving about readily as he formerly did owing to pain and weakness in his leg and- foot. The plaintiff also claimed as the result of the injuries that his leg had decreased in size and that there was a flattening of the arch of the foot, but the extent to which these existed and whether due or not to the accident were disputed questions of fact for the jury’s consideration.

With respect to the second item, the impairment of the doctor’s earning capacity, there wás evidence from which the ¡jury could infer that his pecuniary loss from this cause was substantial for the two years that had intervened between May 31, 1900, when the accident occurred, and April 30, 1903, when the trial took place.

This testimony as to the character of the injuries shows that the damages awarded of $12,000 were excessive and out of proportion to verdicts which in cases of similar injuries have been allowed to stand.

Our conclusion, therefore, is that the verdict is excessive and the judgment and order should be reversed and a new trial granted, unless the plaintiff shall stipulate to reduce the judgment as entered to the sum of $7,783.58, in which event the judgment as thus modified and the order appealed from should be affirmed, without costs of this appeal.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed • and new trial granted, unless plaintiff stipulate to reduce judgment as entered to the sum of $7,783.58, in which event judgment as so modified and the order appealed from are affirmed, without costs of this appeal.  