
    (82 Hun, 285.)
    HEMPENSTALL v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    December 4, 1894.)
    Carriers—Injury to Passenger at Depot.
    Plaintiff, while waiting at defendant’s depot for a train, heard a tram approaching, and, thinking that it was the one he was to take, went on the track to enter it. It proved, however, to be a delayed train, which passed wilhout stopping. At the same time a train was coming from the opposite direction, and plaintiff stepped back on another track to avoid it, and was struck by a freight car which was being switched. Held, that the questions of negligence and contributory negligence were properly submitted to the jury.
    Appeal from circuit court.
    Action by George Hempenstall against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    O. D. Prescott, for appellant.
    L. F. Fish (R. B. Fish, of counsel), for respondent.
   PER CURIAM.

The plaintiff had purchased a ticket for passage on the defendant’s railroad from Fonda to Albany, and was waiting at the former place for an east-bound train, which was past due at that point on schedule time. While there, a fast train, eastward bound, passed the station without stopping, which the plaintiff supposed was his train, and passed from the depot, over some of the tracks of defendant’s road, for the purpose of boarding it. As that train passed without stopping, the plaintiff as would seem, to avoid a west-bound train, which at that time was approaching, stepped back, and was hit by a freight car,—which was in process of being switched, and was moving slowly, either from gravity or its own momentum, detached from any engine,—and was injured.

It is claimed by the plaintiff that the defendant was, as to the passengers traveling on its train, and to whom it owed a high degree of diligence, negligent in kicking a freight car, detached from the engine, in front of its passenger depot, while passengers were in waiting there, for a past-due train. It is also claimed by the defendant that the plaintiff did not show his freedom from contributory negligence, in exposing himself in the daytime to be hit by a freight car, and that if he had looked and listened he could have seen it, and escaped injury. Under the circumstances of this case, we do not think this court can say, as matter of law, that the defendant was free from negligence. Nor can we say, as matter of law, that the plaintiff was guilty of contributory negligence. Under the circumstances of this case, we think that it was a question for the jury whether, under the facts disclosed by the proof, the defendant was guilty of negligence which produced the injury; and if was also a question for them to determine whether the plaintiff had established his freedom from contributory negligence, and that the case was therefore properly submitted to the jury, under a fair charge by the judge.

It is insisted by the defendant that the damages given by the jury are excessive. We think the damages are large, and larger, perhaps, than we would have awarded, had we been called upon to assess them. But that is not the test to be applied by the appellate court in determining whether or not damages are excessive. The jury is the tribunal, under the law, to assess the damages, in a case of this character; and it is only when their verdict is so excessive and disproportionate to the injury that it evinces passion, prejudice, or partiality that the court may interfere to reduce it We cannot say, as matter of law, that the size of this verdict evinces any such improper passion or emotion on the part of the jury in this case. The judgment must be affirmed, with costs.  