
    Frederick Bosworth, App’lt and Resp’t, v. Standard Oil Company of New York, App’lt and Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    1. Damages—Excessive—Personal injuries.
    A verdict for $8,000, in an action for personal injuries is excessive, where it appears that plaintiff was thirty years old at the time of ihe injury, and before it occurred he was healthy and able to perform any kind of heavy labor, but afterwards he was compelled to take ligher employment, atiower wages, and was constantly liable to annoyance, pain and danger, and his condition would so continue unless he submited to an operation which was attended with some risk and would cost at least $125 and lose him a month's time.
    2. Same.
    In such case a verdict of $5000, will not be disturbed either as excessive or as inadequate.
    Appeal from an order setting aside a verdict of $8,000, for plaintiff, unless he would stipulate to reduce it to $5,000.
    Frank Brundage, for plt’ff; Adelbert Moot, for def’t.
   WARD, J.

—The only question in this case is whether the verdict of $8,000 was excessive, and whether the order granting a new trial unless the plaintiff would stipulate to reduce the verdict to $5,000 and interest should be sustained. The plaintiff contends that the verdict of $8,000 was not excessive, and the defendant contends that it was excessive, and that $5,000 would also be excessive, and that the plaintiff should not have recovered to exceed $2,000. At the time of the áccident (October 18, 1894) to the plaintiff, and for some time prior thereto, the defendant owned and occupied certain premises in the city of Buffalo, H. Y., known as the “Atlas Works,” which was operated as an oil refinery. The Buffalo Creek Railroad ran into the yards of the Atlas Works. In connection with its works, defendant had laid tracks, and erected a filling rack near the track, for the purpose of loading cars with oil, which tracks and rack were situate in a part of Prenatt street, in said city, and were placed there by defendant by consent and permission of the city authorities who had the right to grant the same. The plaintiff was in the employ of the Buffalo Creek Railroad Company as a switchman, and belonged to a crew whose duty it was, among other things, to go with an engine upon the lands so occupied by the defendant, and remove cars loaded with oil, and also to place upon the tracks, or in that vicinity, empty cars, which were placed in position for loading by those engaged in the employment of the defendant. Partially under the filling rack, and three feet and nine inches, from the south rail of the north track, there was an oil barrel sunken in the earth to the depth of thirty inches, which barrel defendant had kept in that position for a long time before the accident Whether said barrel had been kept covered by the defendant was a controverted question on the trial. The distance from the side of the ear to the edge of the barrel was about eighteen' inches. While engaged ia the performance of his duties as such switchman,'the plaintiff went in between two cars to couple them-, and had let off the brakes. He then stepped out from between the ears into the sunken barrel, and sustained the injury complained o£ The barrel was open at the time of the accident, the cover lying about two and one-half feet from the barrel. ■ The plaintiff was thrown forward, striking the right side of his abdomen across the chime of the barrel. The plaintiff continued his work that day, and at night discovered a soreness across the right side of the abdomen, but suffered no pain until about four days afterwards. The next day he went to work as usual, and continued his work for thirteen or fourteen days. He had discovered a swelling at the place of the injury about the size of a hen’s egg. After about ten days, he suffered very much pain and soreness. He consulted a physician, and discovered that he had a hernia or rupture. He obtained a truss, which was put ori November 1st. After putting on the truss, he continued to work more or less; and finally, on the 24th of November, he gave up work entirely, from his suffering so much pain, and was weak and sick from the accident, and was laid up with it, and did no work until about the 18th of January following. After that he was given a lighter position, and at .lower wages. Before his injury he received $65 per month; after that he received only from $40 to $45 per month. Before the injury the plaintiff was a vigorous, strong, healthy man, capable of doing any kind of heavy work, and was thirty years of age.

The physician of the plaintiff, Dr. Thomas Q-. Allen, of Buffalo, in speaking of the injury to the plaintiff and its effect, testified :

“It is very doubtful, in my judgment, if Bosworth will ever recover from the effect of that rupture so as to be able to do heavy work. I don’t think he will 'without danger to himself. The shifting of the trust in climbing from car to car may cause the rupture to slip out again. There is danger, if he cannot call a physician at once, to have strangulated hernia, if he cannot reduce it himself. That is a danger.. There would be danger from the rupture to protrude again if the truss were to break, or if he were to met with a sudden fall, so that the truss should give way. He will not, in my judgment, recover from his injury, so at to be able to do more than ordinary, light work, without danger to himself. That danger will be constant as long as he wears a truss. In my judgment, he could not safely perform his duties as switchman, getting off and on cars, turning brakes, as he did before this accident, because he would be likely to shift that truss. It is almost impossible to put a pad on a hernia that way, and hold it exactly in the spot, The shifting and bending is apt to disturb the pad, and. if it gets out of position, the rupture will protrude. The rupture is such as, during the balance of his life, it will prohibit him, with safety, from doing the work he did before. There will be more or less risk to run all the time.”

These conclusions of this witness were sustained by another physician called by the plaintiff, and were not substantially controverted upon the trial. Dr. Eos well Park was called for the defendant, and, after answering a hypothetical- question, he stated that a surgical operation could be performed, in bis opinion, upon the plain* iff, with but very little risk, which would relieve him, at the expense of $125 to $150, and losing a month's time.

Upon the state of facts here presented, w.e concur with the trial court that the verdict of $8,000 was excessive, and should have been reduced; but the injury to the plaintiff was serious. It subjected him to a burden of annoyance, pain, and danger during the residue of his life, unless he chose to take the risks of the surgical operation referred to. He was not obliged to incur that risk. It was a matter of judgment and discretion with him as to whether he should do so. The learned trial judge, having the witnesses before him, observing the appearance and condition of the plaintiff, was better qualified to judge whether the verdict was, excessive, and to what extent it should be reduced, than the appellate court, with only the printed records before it, can possibly be; but from that record we have reached the conclusion that the amount fixed, of $5,000, to which the verdict should be reduced if the plaintiff should stipulate, was proper, under the eircumstanstances of this case; and the order should be affirmed, but without costs to either party, with leave to the plaintiff to stipulate as provided in the order appealed from within twenty days.

All concur.  