
    James R. Jones, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—measure of damages in an action to recover for personal injuries — a verdict for §15,000 sustained.
    
    A person who suffers personal injuries through the negligence of another is entitled to recover his reasonable expenses for medical services, medicine and attendance, and also a reasonable amount in compensation for the pain and suffering occasioned by his injuries, and from the scars and deformities resulting therefrom, together with a sum sufficient to compensate him for his loss of earning capacity.
    When a verdict of §15,000 rendered in such an action is not excessive, considered. Houghton, J., dissented.
    Appeal by the defendant, The New York Central and Hudson River 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 Franklin on the 19th day of March, 1904, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 21st day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Martin E. McClary, for the appellant.
    
      M. E. Driscoll, for the respondent.
   Chase, J.:

On the 9th day of May, 1903, the plaintiff, while engaged in the performance of his duties as a United States railway mail clerk, in a mail car connected with one of the defendant’s trains, was injured in a head-on collision which occurred on the Mohawk and Malone division of the defendant’s road. This action is brought to recover damages for such injuries.

It is conceded that the defendant is liable to the plaintiff for compensatory damages arising from the injuries received by him, and the only question on this appeal is as to whether the amount of the verdict is excessive.

The collision occurred about three o’clock in the afternoon at a point on said road about 115 miles south of Malone. Plaintiff was taken to his home in Malone in a caboose attached to an engine, but he did not arrive at his home until between twelve and one o’clock the following morning. His injuries were severe and painful. He had six or seven small wounds upon his forehead, some of which were superficial, and some extended to and through the immediate covering of the bone. He had a compound fracture of the nasal bones; they were both fractured and the nose was displaced and driven to the right; he had a severe and extensive contusion upon his left hip, reaching to the spine; he had a compound comminuted complicated fracture of the lower portion of the right leg close to the ankle joint ; the bones were crushed and the physicians could feel the fragments, and one piece of the bone was found protruding through the plaintiff’s shoe. There were two external wounds reaching nearly around the injured leg, and also injuries to the muscles, nerves and blood vessels about the ankle. The smaller bone of the right leg was also broken at a point a few inches above the place of the principal injury. The cuts on the defendant’s forehead and the injuries to the nose have healed. His face is scarred and his nose is crooked. There was nothing the matter with him before the accident and he was a strong, healthy man who had never been sick. He never had headaches • before the injury, but now he has headaches nearly every day, and at times a deranged stomach. His sense of smell and ability to breathe through the nose have been impaired. In speaking, his voice now has a nasal twang. -The left hip was dark and dark brown for a long time and is still discolored. The right leg is now one-half to three-fourths of an inch shorter than the other. The tissues about the ankle joint are stiffened, the heel cord is shortened, and he cannot get his heel down level with the ball of his foot.

From the evidence the jury may have found that notwithstanding proper treatment by the physicians who attended the plaintiff the bones or parts of bones at the injured parts have slipped about and not healed in their natural position, that the inner malleolus was broken and that it is not now in place and that there are adhesions which cannot be overcome without a further operation. Plaintiff lay on a cot for four weeks, and thereafter his left leg was placed in a plaster cast for six weeks. At the time of the trial he could balance himself without crutches and could walk with crutches. His physician testified : It is reasonably certain that in the ordinary course of nature the present condition will continue. That is my judgment. It may possibly improve a little. In the ordinary course of things it will not improve and his present condition substantially will be permanent.”

Although there is no direct evidence of any injury to his right arm, yet the plaintiff testifies: “ There is something the matter with my right arm; at times I will have a book or some object in my hand and before I know it, it is on the floor. I cannot tell the reason why. I do not know, but simply my grip — it relaxes, and the articles drop away from me. That has happened a great many times since then ; it relaxes involuntarily. I did not discover this trouble till I got off from the cot at the end of four weeks. It has continued up to the present time.”

At the time of the accident he was about thirty-two years old. He has a wife and one small child. He had been employed as a United States mail clerk for twelve years. He obtained his position in the mail service through a competitive examination, and at first received a salary of $800 per year. His pay was increased from time to time, and at the time of the collision he was receiving $1,100 per year. He was not in the highest class in the railway mail service and a person in such service is retained as long as he does his work properly and is promoted from time to time according to efficiency. His injuries are such that he cannot return to the mail service and he has not done any work since the accident.

In cases of personal injury there is no rule by which compensatory damages may be computed with accuracy. Plaintiff is entitled to recover his reasonable expenditures for medical services, medicines and attendance, and also a reasonable amount in compensation for the pain and suffering occasioned by his injuries and for the scars and deformities resulting therefrom, to which amount must be added a sum sufficient to compensate him for his loss of power to earn money.

The verdict of juries and determination of courts in other cases cannot be safely relied upon as a rule or guide in determining whether a verdict is excessive, as each case necessarily depends upon facts and circumstances applicable to or surrounding it. It is the province of the jury to fix the amount of the damages in each case, and it has been repeatedly stated by the courts that a verdict should not be set aside unless the jury has been misled by passion or prejudice or coerced by some improper influence in fixing the amount of their verdict. Where it is plain that the amount of the verdict is out of all proportion to the injuries received, the court will assume that the jury misunderstood the rights of the parties or the effect of the evidence before them in determining the amount of their verdict or that the verdict was affected by over-powering sympathy or improper influences. An examination of the record does not disclose that anything occurred on the trial that we can say improperly affected or influenced the judgment of the jury. The defendant having conceded that it was liable to the plaintiff for the injuries received by him, neither the details of the defendant’s negligence nor the harrowing scenes connected with the collision itself were before the jury. The question left to the jury was a simple, single question, in no way complicated by other issues. It was fairly presented to them by the court apart from any apparent influence that would lead them to do more than fairly ascertain to the best of their judgment the true answer to the question presented to them. The plaintiff has become liable to pay at least $324 for medical services and attendance. He suffered excruciating pain and is scarred and deformed. It is practically conceded that his injuries are such that he cannot return to the service in which he has been engaged since his majority. His loss of such position is a serious one. He has not done any work since his injury, and it does not appear when or where he can obtain employment suitable for him in his present physical condition. The extent of his earning power in some new position or business to be hereafter obtained by him is a matter of great uncertainty. The verdict of the jury so far as can be ascertained from the record was the unanimous judgment of men honestly and fairly attempting to perform their duty to the best of their ability, and we cannot say that it should be set aside.

The judgment and order should be affirmed, with costs.

All concurred, except Houghton, J., who voted to reduce verdict to $10,000.

Judgment and order affirmed, with costs.  