
    Anderson v. Manhattan Elevated R. Co.
    (New York Common Pleas — General Term,
    December, 1892.)
    Plaintiff was injured by the fall of a piece of a platform knocked off by defendant while placing additional guard timbers along its track. .The piece of platform was so rotten that it might be broken with the hand,' and its condition discovered by ordinary inspection. Held, evidence of negligence for the jury.
    Plaintiff was in her sixty-ninth year, a confirmed invalid, earning six dollars a week ; the injury received was neither painful, serious nor incurable. Held, that a verdict of $5,000 was excessive.
    Appeal from judgment on verdict, and from order denying a new trial.
    Action for personal injury from the negligence of the defendant. The opinion states the case.
    
      R. L. Maynard, for defendant (appellant).
    
      J. Edward Swanstrom, for plaintiff (respondent).
   Pryor, J.

We decline discussion of the proposition advanced

by appellant, that except when a contractual relation subsists, the mere occurrence of a casualty is no evidence of negligence; because we find in the record sufficient proof, prima facie, of the absence of ordinary care on the part of defendant’s servants.

The injury of which the plaintiff complains, was caused by the fall of a piece of wood from defendant’s elevated railway. The defendant was engaged in placing additional guard timbers along its track. From their size, these timbers were of considerable weight. They were distributed by sliding them over the car and then letting them fall on the edge of the walk or platform. On the occasion in question, one of these timbers, so distributed, struck the platform and knocked a piece out, which fell on the plaintiff, eighteen or twenty feet below in the street. This piece of the platform was exhibited to the jury, and was rotten — so rotten that it might be broken with the hand, and so rotten that its condition was discoverable by ordinary inspection. Here, undoubtedly, was evidence of negligence for the jury. Treanor v. Manhattan R. Co., 41 N. Y. St. Repr. 615; Volkmar v. Manhattan, R. Co., 47 id. 631.

Appellant contends, however, that the presumption of negligence, if any, shown by the plaintiff, was rebutted and destroyed by the contrary evidence. But that was just the question for the jury; and as the evidence conflicted, and the credibility of the testimony was exclusively for their judgment, we are not permitted to gainsay their decision and set aside the verdict as unwarranted by the proof. Volkmar v. Manhattan R. Co., 47 N. Y. St. Repr. 631.

Although we cannot reverse the judgment for error or insufficient evidence, we are clearly of opinion that the recovery is excessive.

The plaintiff was in her sixty-ninth year; she was a confirmed invalid; in her occupation of washing and scrubbing, she earned, apparently, on an average, six dollars a week; in itself, the wound inflicted by the defendant was neither painful, nor serious, nor incurable, but was important only in its consequences; these consequences, if they exist, which is doubtful, may be attributable to her morbid condition, rather than to the injury inflicted by the defendant.

Our conclusion is that $2,500 would he a just compensation to the plaintiff, and that, if she accept this sum, the judgment .should be affirmed; else, that it be reversed and a new trial awarded.

Judgment reversed, with costs to abide the event, unless plaintiff stipulate to reduce it to $2,500. If she so stipulate, judgment as modified, affirmed, with costs.

Daly, Ch. J., and Bisohoff, J., concur.

Judgment accordingly.

MEMORANDA OF CAUSES ETOT EEPOETED IN FULL.  