
    Julius Crantz, Respondent, v. Nassau Electric Railroad Company, Appellant.
    Second Department,
    December 30, 1912.
    Railroad —negligence — collision with, wagon driven on tracks —facts raising questions for jury — evidence—atmospheric conditions at time of accident — excessive verdict.
    Action to recover for personal injuries. A wagon which the plaintiff was driving upon the tracks of the defendant’s street railroad was struck by a car coming from behind. There was evidence that the plaintiff had looked before driving upon the track and that no warning of the approach of the car was given. On all the evidence, held, that the negligence of the defendant and the contributory negligence of the plaintiff were questions for the jury.
    A person who was within four blocks of the accident may testify how far the atmospheric conditions at the time permitted him to see. It is not necessary that he should have been at the exact place of the accident. Verdict of $3,500 held to be excessive and a new trial granted, unless the plaintiff stipulates to reduce the verdict to $2,000.
    Re argument of an appeal by the defendant, the Nassau Electric Railroad 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 on the 9th day of March, 1912, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 4th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Rippey T. Sadler [William H. Knemeyer with him on the brief], for the respondent.
   Per Curiam:

The plaintiff while driving a milk wagon southerly upon the south-bound track of the defendant in Fifth avenue, borough of Brooklyn, on the morning of August 17, 1910, was struck by one of defendant’s cars coming from the rear, near Sixty-' fifth street, and sustained injuries for which the jury has awarded him a verdict of $3,500. The defendant appeals.

The accident occurred at about four-fifteen a. m., before the sun was up, but at a -time when objects were discernible for some little distance. It appears from the evidence that the street on which the plaintiff was driving was rough and difficult to travel, and that he was making use of the defendant’s tracks. Plaintiff testifies that he looked on coming upon the track where Sixtieth street crosses Fifth avenue; that he looked again at Sixty-second street, and yet again when he was between Sixty-third and Sixty-fourth streets, and that his wagon was struck just as he had nearly cleared the track near Sixty-fifth street. He testified that he had no warning of the approach of the car, and we are of the opinion that the case presented a question for the jury on the point of contributory negligence.

A witness called for the plaintiff testified that he was sitting near the front of the colliding car, the door beiiig open, and that he saw in an indistinct way the plaintiff’s wagon when it was .twenty-five or thirty feet away, and that at some point between that time and the collision the defendant’s naotorman made use of all of the appliances to stop the car, but just when this was done he is unable to state, but there was evidence in the case to the effect that objects could he seen, without artificial light, at a distance Of a block, and we think it was proper that the jury should. determine whether the motorman had exercised the degree of care which the circumstances demanded. The plaintiff was near a street intersection, where the defendant owed the duty of having its car in reasonable control, and the situation was such as to make it peculiarly a matter to be determined by twelve men rather than-the court."

A witness who was engaged in loading a baker’s wagon at Sixty-ninth street at the time of the accident was asked how far he could see. This was objected to as incompetent, irrelevant and immaterial, on the ground that it was not at the scene of the accident, and that the conditions were not shown to be the same, and the exceptions taken are now urged -against the judgment. We áre unable to discover prejudicial error; the witness was testifying as to the atmospheric conditions within four blocks of the accident, and this was certainly as competent and as relevant as the testimony of the weather bureau as to the conditions prevailing at 100 Broadway, Manhattan, where the observations were taken, and which were offered in behalf of the defendant. The rules of evidence must not be refined to a point where they cease to be practical.

On the question of damages we are of the opinion that the evidence does not justify the verdict of $3,500. The plaintiff had his collar bone broken, not a serious injury, and sustained various lacerations and contusions about his head and body, which confined him to the hospital from August seventeenth to September twelfth, and which interfered with the performance of his work until October twenty-fourth, and at the time of the trial in April, 1912, he still complained of some slight difficulties which he attributed to his injuries, but there was no evidence of any permanent injury. He showed a-loss of earning power of $16 or $17 per week for about eight weeks, and if there were any other pecuniary losses they do not appear in the record so far as we can discover. We are of opinion that $2,000 would be a liberal compensation for the damages proved in this case, and there is no justification for taking from the defendant more than the damages which the plaintiff has established.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event, unless the plaintiff is willing to stipulate for a reduction of the verdict to $2,000, in which event the judgment, as modified, and the order should be affirmed, without costs.

Present — Jerks, P. J., Thomas, Oarr, Woodward and Rich, JJ.

Judgment and order reversed on reargument and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery of damages to the sum of $2,000, in which event the judgment, as modified, and the order are unanimously affirmed, without costs.  