
    Maloy vs. The New York Central Railroad Company.
    In an action to recover damages for personal injuries arising from negligence, the evidence touching the negligence of the parties is for the jury.
    Whether it was negligence in the plaintiff to walk upon a sidewalk in a dark night, without a light, is á question of fact for the jury, and not a question of law for the court.
    So, also, as to the treatment of the part injured; it being the "duty of the person injured to take proper care thereof, and, if necessary, to employ a competent surgeon, evidence touching the injury, and its treatment, is properly submitted to the jury; and the question of the negligence of the plaintiff in regard to the injury is for the jury.
    
      Where the evidence tended to prove a severe, and probably permanent, injury to the plaintiff’s hand and wrist, arising from the defendant’s negligence; Held that a verdict for $2500 ought not to be set aside on the ground that the damages were excessive.
    APPEAL by the defendant from an order made at a special term, denying a motion for a new trial.
    The action was brought to recover damages for injuries sustained by the plaintiff in consequence of falling into a hole opened and left by the workmen of the defendant, in a public sidewalk, crossing its tracks at Niagara Falls. It was claimed by the plaintiff that the defendant was negligent in leaving the hole open and unguarded, during a whole night; and by the defendant, that the plaintiff was negligent in walking where he could not see without a light; also in omitting to apply proper remedies to his injured arm, after the accident. The facts proved are sufficiently referred to in the opinion of the court.
    
      A. P. Laning, for the appellant.
    
      Holmes & Fitts, for the respondent.
   Marvin, P. J.

The evidence proved, or tended to prove, that the defendant, in the year 1862, while making certain repairs to its railway track, at or near Niagara Falls, took up and moved some of the planks of the sidewalk, which sidewalk crossed the said road-tracks, leaving a hole or depression of some twelve inches; that the plaintiff, in passing along the sidewalk, about 9 o’clock in the evening, a dark and rainy, night, stepped into the hole, and fell, striking on his left hand, which was injured. There was considerable evidence touching the extent of the injury, and the condition of the sidewalk, as it was left by the servants of the defendant. There was a motion for a non-suit, on the grounds, 1st. That there was no negligence on the part of the defendant, proved; 2d. That there was negligence on the part of the plaintiff, proved, which contributed to the injury. The motion was denied, and the defendant excepted. The defendant gave some evidence as to the extent of the injury; also as to the manner of treatment of the injury, by the plaintiff; and as to the condition of the sidewalk as left by the servants of the defendant. The charge of the court is not given. The verdict was for the plaintiffj $2500.

The defendant’s counsel, in his points, claims that the defendant restored the sidewalk in such ,a manner as rendered travel on it safe, and that it was not negligent; also that the plaintiff was negligent, and especially in traveling along the sidewalk in a dark night, without a lamp or other light.

The evidence touching the negligence of the parties was for the jury. The evidence on the part of the plaintiff, I think, showed very clearly the negligence of the servants of the defendant; and I do not think that the evidence on the part of the defendant made the case much better. By it, it appeared that some of the planks were laid down across the space; that the space between the two west ( tracks of the railroad (some seven feet) “ was not all covered—not more than half covered.” The evidence clearly showed that there was a hole left, into which the plaintiff stepped, and that he fell and received the injury.

Whether it was negligence in the plaintiff to walk upon the sidewalk in a dark night, without a light, was a question of fact for the jury, and not a question of law for the court. So, also, as to the treatment of the wounded wrist. It was undoubtedly the duty of the plaintiff to take proper care of the hand and wrist, and, if necessary, to employ a competent surgeon. There was considerable evidence touching the injury, and its treatment, all of which was submitted tothe jury; and the question of the negligence of the plaintiff in regard to the injury was for the jury.

The verdict ought not to be set aside on the ground that the damages were excessive. The evidence tended to prove a very severe injury, and one probably, in its character, permanent.

[Erie General Term,

February 14, 1870.

The order appealed from should be affirmed, with costs.

Daniels and Talcott, JJ., concurred.

Barker, J., did not participate in the decision; the cause having been tried before him.

Order affirmed.

Marvin, Daniels and Talcott, Justices.]  